Christian Dominguez v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: June 26, 2026
• Docket: 2025-CA-0043
• Status: Published

Opinion

RENDERED: JUNE 26, 2026; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0043-MR

CHRISTIAN DOMINGUEZ APPELLANT

APPEAL FROM CAMPBELL CIRCUIT COURT v. HONORABLE JULIE REINHARDT WARD, JUDGE ACTION NO. 23-CR-00086

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

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BEFORE: ACREE, L. JONES, AND MOYNAHAN, JUDGES.

ACREE, JUDGE: Christian Dominguez seeks review of the Campbell Circuit

Court’s Order terminating his felony diversion program participation and

sentencing him to probation. Dominguez contends the court failed to make

findings required by KRS1 439.3106(1) and therefore abused its discretion.

However, the court’s order did not incarcerate Dominguez as would have required

1 Kentucky Revised Statutes. compliance with section (1)(a). The order imposed a lesser sanction authorized by

section (1)(b) which does not require such compliance. Therefore, we affirm.

In February 2023, police officers were dispatched to a Campbell

County Waffle House on a report of Dominguez threatening to shoot people. They

recovered a loaded .38 revolver from his pocket, testing confirmed he was highly

intoxicated, and he was later found to be in possession of 3.5 oxycodone pills. The

grand jury returned a two-count indictment charging him with first-degree

possession of a controlled substance (a felony) and third-degree terroristic

threatening (a misdemeanor).

Dominguez and the Commonwealth entered into a plea agreement: the

Commonwealth would recommend two years in the felony diversion program on

count 1 (drug possession) and a twelve-month sentence probated for two years on

count 2 (terroristic threatening), with the time running concurrently. The court

accepted the plea, adjudged Dominguez guilty of both charges, and sentenced him

pursuant to the Commonwealth’s recommendation. The court’s list of conditions

to diversion included not violating any law of Kentucky or any other state.

The court entered a separate order placing Dominguez in the felony

diversion program monitored by the Department of Probation and Parole and

deferring sentencing on the drug possession charge pending program completion.

-2- In October 2024, probation officer Kieran Brosnan filed an affidavit

with the court stating Dominguez was arrested in Warren County, Ohio, on a

charge of domestic violence. The trial court issued a warrant, and Dominguez was

arrested in Kentucky for violating the terms of his diversion supervision.

At a diversion termination hearing, the Commonwealth introduced

Brosnan’s testimony. The court concluded Dominguez’s conduct in Ohio violated

the terms and conditions of the diversion order. That finding is uncontested.

Dominguez argues only that the trial court violated KRS 439.3106(1)

by failing to make factual findings that: (1) defendant’s “failure to comply with the

conditions of supervision . . . constitutes a significant risk to prior victims of the

supervised individual or the community at large,” and (2) the defendant “cannot be

appropriately managed in the community[.]” This argument misses the mark.

In deciding whether to void a pretrial diversion agreement, “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.”

KRS 533.256(2). The trial court did so when it found the Commonwealth met its

burden of showing Dominguez violated the conditions of his diversion supervision.

See Murphy v. Commonwealth, 551 S.W.2d 838, 841 (Ky. App. 1977).

“[O]nce a Trial Court determines that a supervised individual violated

the terms of his probation [or diversion], ‘there are two possible outcomes:

-3- revocation and possible incarceration, KRS 439.3106(1), or the imposition of

sanctions ‘other than revocation[.]’’” Nantz v. Commonwealth, 728 S.W.3d 804,

811 (Ky. App. 2026) (quoting Commonwealth v. Andrews, 448 S.W.3d 773, 777

(Ky. 2014)) (emphasis original). Dominguez himself quoted the trial court’s

identification of the critical issue: “The question is . . . whether I’m going to keep

you on probation or not.” (Appellant’s Br. 2.) In other words, will the trial court

incarcerate Dominguez as KRS 439.3106(1) authorizes? If so, the court would

have to make the findings Dominguez says the court failed to make.

But the trial court chose “[s]anctions other than revocation and

incarceration” as authorized by KRS 439.3106(1)(b) (emphasis added). The

specific sanction the trial court chose was probation, not incarceration. Therefore,

the section (1)(a) findings required for revoking the privilege of avoiding

immediate imprisonment—a privilege mercifully granted a convicted felon—are

irrelevant. Instead, section (1)(b) governs. That section requires that the trial

court’s choice of a lesser sanction balance “the risk of future criminal behavior by

the offender [on the one hand], and[, on the other,] the need for, and availability of,

interventions which may assist the offender to remain compliant and crime-free in

the community.” KRS 439.3106(1)(b). The record shows the trial court struck

that balance.

-4- Nevertheless, Dominguez argues that, before diversion could even be

revoked, “[t]he trial court was required to find that [he] could not be managed in

the community . . . [and] posed a significant risk” to others. (Appellant’s Br. 8.)

Dominguez misunderstands the legislature’s intent in enacting the statute.

We must “presume that the General Assembly intended for the statute

to be construed as a whole, for all of its parts to have meaning . . . .” Burke v.

Commonwealth, 506 S.W.3d 307, 317 (Ky. 2016). The criteria of section (1)(a)

are not prerequisites to revocation but to the greater sanction of incarceration. The

legislature established in section (1)(b) the criterion for revocation followed by

lesser sanctions. The trial court satisfied that criterion in this case.

CONCLUSION

The Campbell Circuit Court’s December 23, 2024 Order terminating

Dominguez’s participation in a felony diversion program and sentencing him to

probation is affirmed.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Adam Meyer Russell Coleman Frankfort, Kentucky Attorney General of Kentucky

Ryan D. Mosley Assistant Solicitor General Frankfort, Kentucky

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