Chance Brewer v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: October 8, 2020
• Docket: 2019 CA 001352
• Status: Unknown

Opinion

RENDERED: OCTOBER 9, 2020; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2019-CA-1352-MR

CHANCE BREWER APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE THOMAS L. TRAVIS, JUDGE ACTION NO. 17-CR-00726

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND JONES, JUDGES.

CLAYTON, CHIEF JUDGE: Chance Brewer (“Brewer”) appeals from the Fayette

Circuit Court’s final judgment voiding his pretrial diversion and sentencing him to

three years’ imprisonment. Upon review of the record and applicable law, we

affirm. BACKGROUND

In February of 2017, Brewer was stopped for a traffic violation in

Fayette County. At that time, Brewer’s license was suspended and he had four

outstanding warrants for his arrest, so he gave the name, birth date, and phone

number of his cousin to avoid arrest. It was only once Brewer’s cousin, Tyler

Adams, received a letter from the Department of Transportation advising that

Adams’s license was going to be suspended that Adams filed a theft of identity

report with the Lexington Police Department. Upon further investigation, officers

determined that it was Brewer who had given the false information.

On July 11, 2017, a Fayette County grand jury indicted Brewer on one

count of theft of identity of another without consent. Brewer ultimately pled guilty

to the charge on March 16, 2018. The Commonwealth recommended a three-year

sentence with supervised diversion for five years, which the trial court granted.

The diversion order required that Brewer obey all rules and regulations imposed by

the Department of Probation and Parole, commit no other offenses during the

pretrial diversion period, and have no violations of the Kentucky Penal Code. The

order also made clear that Brewer faced a sentence of three years’ imprisonment if

he failed to comply with the foregoing conditions.

At the time that the trial court granted his pretrial diversion, Brewer

also had pending charges in both Jessamine County and Pulaski County. Brewer

-2- had been arrested and charged in Jessamine County on August 5, 2017, for

burglary in the third degree. Additionally, Brewer had been arrested and charged

in Pulaski County on February 27, 2018 for several felonies, including theft by

unlawful taking over $10,000. Ultimately, Brewer was convicted of a number of

the charged felonies in Pulaski County and sentenced on October 8, 2018 to a total

of twenty years’ imprisonment. Brewer’s sentence was probated so long as he

entered a long-term treatment program.

Brewer entered such a program but ultimately absconded on October

12, 2018. On October 15, 2018, Brewer’s probation and parole officer entered a

violation of supervision report and affidavit with the court which stated Brewer’s

supervision violations, including “actively concealing his whereabouts from

Probation and Parole” and “abscond[ing] his supervision.” The officer

recommended revocation in all cases and indicated that “[d]ue to the nature of the

offenses, graduated sanctions are not appropriate in this case.”

On October 17, 2018, the Commonwealth moved to void Brewer’s

diversion based on the new felony convictions in Jessamine and Pulaski counties

as well as the fact that Brewer had absconded from supervision. On October 26,

2018, the trial court heard and orally sustained the Commonwealth’s motion to

void Brewer’s diversion. Because he had absconded, Brewer was not present for

this court appearance, and the trial court also entered a bench warrant for Brewer’s

-3- arrest for failing to appear at a motion hour, noting that Brewer had five warrants

for his arrest in Pulaski and Jessamine counties. On October 29, 2018, the trial

court entered an order granting the Commonwealth’s motion to void Brewer’s

diversion agreement.

Brewer was ultimately returned to custody on February 26, 2019.

Thereafter, on May 3, 2019, the trial court entered an order setting aside its

previous order voiding Brewer’s diversion after it was brought to the trial court’s

attention that Brewer had a right to be present at any hearing wherein his pretrial

diversion was revoked.

On May 30, 2019, the Commonwealth filed another motion to void

Brewer’s diversion. In its motion, the Commonwealth renewed the arguments in

its first motion and added that Brewer had been indicted in Fayette County on

April 22, 2019 on a new felony case for three counts of theft by unlawful taking,

one count of third-degree criminal mischief, and one count of being a second-

degree persistent felony offender.

On May 31, 2019, the trial court held a hearing on the

Commonwealth’s motion. At this hearing, defense counsel requested an

evidentiary hearing as well as a continuance to adequately prepare for such

hearing. The trial court denied both requests. The Commonwealth called one

witness, Brewer’s officer from Probation and Parole, who was unable to specify

-4- the dates of the offenses that were being used to support revocation. The officer

stated that he did not know when Brewer was arrested or when the crimes were

committed in either the Jessamine County or Pulaski County cases, only that

Brewer was formally charged and convicted of the offenses during his period of

diversion. The officer also testified that Brewer had absconded from supervision

from October 12, 2018 until February 26, 2019, along with testifying to the fact

that Brewer had a new indictment in Fayette County.

The trial court orally sustained the Commonwealth’s motion to void

Brewer’s diversion on the basis that – during his diversion period – Brewer had

received three felony convictions from Pulaski County, a new felony charge in

Fayette County, absconded from supervision, and failed to make numerous court

appearances. The trial court entered a corresponding written order on June 6,

2019. Thereafter, the trial court formally sentenced Brewer to three years’

imprisonment on July 30, 2019. Brewer now appeals as a matter of right.

ANALYSIS

Brewer first argues that he was denied his right to due process when

his diversion was revoked for conduct that occurred prior to his diversion period.

In other words, Brewer argues that the conduct leading to the charges in Jessamine

and Pulaski counties occurred prior to his diversion period, and therefore his

-5- convictions for those charges should not have been used as a basis by which to

void his diversion period.

Generally, an appellate court reviews a decision to revoke probation

for an abuse of discretion. Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky.

2014) (citation omitted). Under the abuse of discretion standard of review, this

Court “will disturb a ruling only upon finding that the trial judge’s decision was

arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Id.

(citation and internal quotation marks omitted). Brewer acknowledges that his

argument is unpreserved in part and requests palpable review, which we will

undertake. For an error to be palpable, it “must be so grave in nature that if it were

uncorrected, it would seriously affect the fairness of the proceedings.” Brewer v.

Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006) (citation omitted). Manifest

injustice results from a “defect in the proceeding [that is] shocking or

jurisprudentially intolerable.” Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky.

2006).

In this case, we can discern no such error. Even if we were to

determine that Brewer’s convictions during his diversionary period could not be

used as the basis for voiding his diversion, the fact remains that Brewer also

violated the terms of his supervised diversion order when he absconded for

approximately four months in contravention of his duty to obey all rules and

-6- regulations imposed by Probation and Parole. Pursuant to Kentucky Rule of

Criminal Procedure (RCr) 8.04(4)(b):

The [trial] court may order the [diversion] agreement terminated and the prosecution resumed if, prior to completion of the agreement by the defendant, the court finds at a hearing the existence of one of the following:

...

(ii) The defendant has committed a material violation of the agreement or has failed to complete the terms of the agreement.

Approximately seven months after entering into the diversion agreement, Brewer

absconded from his supervised diversion and failed to communicate with his

probation and parole officer for approximately four months. We would deem this

to be a material violation of the agreement and, as a result, we see no manifest

injustice resulting from the trial court’s decision.

Brewer next argues that the trial court erred in voiding his diversion

because it failed to adequately apply the provisions of Kentucky Revised Statute

(KRS) 439.3106. Specifically, Brewer argues that the trial court improperly made

general conclusory findings and relied on a check-box form in its findings and

conclusions of law. Here, Brewer maintains that this argument was preserved

during the diversion revocation hearing when Brewer’s counsel requested

alternative conditions rather than revoking Brewer’s diversion. Alternatively, the

Commonwealth contends that Brewer’s request for alternative conditions did not

-7- sufficiently preserve this specific issue for review, and that we should therefore

review for manifest injustice only.

Pursuant to KRS 533.256(2), “[i]n making a determination as to

whether or not a pretrial diversion agreement should be voided, the court shall use

the same criteria as for the revocation of probation, and the defendant shall have

the same rights as he or she would if probation revocation was sought.”

Additionally, KRS 533.256 has been interpreted to require the consideration of

KRS 439.3106 prior to voiding any pretrial diversion. Zanders v. Commonwealth,

572 S.W.3d 76, 79 (Ky. App. 2019). Pursuant to KRS 439.3106:

[s]upervised individuals shall be subject to . . . [v]iolation 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[.]

Therefore, as stated by a panel of this Court in Richardson v. Commonwealth,

“while trial courts retain discretion in revoking probation, consideration of the

criteria provided in KRS 439.3106 is a mandatory prerequisite . . . to the voidance

of diversion.” 494 S.W.3d 495, 498 (Ky. App. 2015) (citation omitted).

To comply with the statutory requirements, “[s]pecific findings of fact

addressing the statutory criteria may be either written or oral.” Compise v.

Commonwealth, 597 S.W.3d 175, 180 (Ky. App. 2020) (citation omitted).

-8- Moreover, “[b]oth findings are necessary before a pretrial diversion may be

voided.” Id. (citation omitted). Therefore, we are tasked with ascertaining in this

case “whether the evidence of record before us supports such findings and whether

the circuit court indeed made such findings.” Id. (citation omitted).

In this case, at the conclusion of the hearing, the trial court explicitly

considered Brewer’s violations and the criteria under KRS 439.3106 before finding

that Brewer posed a significant risk to the community at large and could not be

appropriately managed in the community. Brewer compares his case to Helms v.

Commonwealth, 475 S.W.3d 637 (Ky. App. 2015), in which a panel of this Court

held the trial court’s KRS 439.3106 findings to be insufficient. However, in Helms

we noted that the trial court had “orally and in its written order expressed that it

was enforcing [a] zero-tolerance provision” and only “parroted the statutory

language” of KRS 439.3106. Id. at 645.

Here, in its oral findings the trial court did not merely parrot the

statutory language as denounced in Helms. Instead, the trial court properly cited

Brewer’s numerous violations, arrests, bench warrants, and failures to appear in

court in support of its ruling. Further, the record shows both documentation and

testimony from Brewer’s probation and parole officer supporting the trial court’s

findings. In short, there was sufficient evidence presented to the trial court to

support revocation under KRS 439.3106.

-9- CONCLUSION

For the foregoing reasons, we affirm the Fayette Circuit Court’s order

voiding Brewer’s pretrial diversion and sentencing him to three years’

imprisonment.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Adam Meyer Daniel Cameron Kayla D. Deatherage Attorney General of Kentucky Assistant Public Advocates Department of Public Advocacy Courtney J. Hightower Frankfort, Kentucky Assistant Attorney General Frankfort, Kentucky

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