RENDERED: DECEMBER 23, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0068-MR
GREGORY WITHAM APPELLANT
APPEAL FROM LAWRENCE CIRCUIT COURT v. HONORABLE JOHN DAVID PRESTON, JUDGE ACTION NO. 18-CR-00106
COMMONWEALTH OF KENTUCKY APPELLEE
AND NO. 2020-CA-0069-MR
APPEAL FROM LAWRENCE CIRCUIT COURT v. HONORABLE JOHN DAVID PRESTON, JUDGE ACTION NO. 18-CR-00100
COMMONWEALTH OF KENTUCKY APPELLEE AND NO. 2020-CA-0070-MR
APPEAL FROM LAWRENCE CIRCUIT COURT v. HONORABLE JOHN DAVID PRESTON, JUDGE ACTION NO. 18-CR-00102
OPINION VACATING AND REMANDING
** ** ** ** **
BEFORE: GOODWINE, MCNEILL, AND L. THOMPSON, JUDGES.
GOODWINE, JUDGE: Gregory Allen Witham (“Witham”) appeals the December
23, 2019 orders of the Lawrence Circuit Court imposing a sentence of ten years’
imprisonment after voiding his pretrial diversion agreement.1 After careful review,
we vacate and remand.
1 Witham’s pretrial diversion agreement was voided by separate orders of the court on November 15, 2019. Those orders were not identified in Witham’s notices of appeal or attached as appendices to his briefs but were entered into the record. Record (“R.”) at 115-17.
-2- BACKGROUND
The facts in this matter are uncontested. In 2018, Witham pled guilty
to charges in three separate but related criminal cases.2 In 18-CR-00100, Witham
pled guilty to one count of possession of a controlled substance in the first degree3
and was sentenced to two years’ imprisonment. In 18-CR-00102, Witham pled
guilty to two counts of receiving stolen property under $10,000.004 and was
sentenced to five years’ imprisonment. In 18-CR-00106, Witham pled guilty to
one count of possession of a controlled substance in the first degree, one count of
tampering with physical evidence,5 and one count of resisting arrest.6 He was
sentenced to three years’ imprisonment for the possession charge, three years’
imprisonment for the tampering charge, and twelve months’ imprisonment for
resisting arrest, all to be served concurrently for a total of three years’
imprisonment. Consistent with his plea agreement, Witham was sentenced to serve
2 The three criminal actions were considered by the circuit court jointly. As the relevant portions of the circuit court records in the three cases are nearly identical, citations in this opinion will be made to the record in 2020-CA-0068-MR. 3 Kentucky Revised Statutes (“KRS”) 218A.1415, a Class D felony. 4 KRS 514.110, a Class D felony. 5 KRS 524.100, a Class D felony. 6 KRS 520.090, a Class A misdemeanor.
-3- the terms in the three cases consecutively for a total of ten years’ imprisonment,
diverted for five years.
Witham failed to comply with the terms of his pretrial diversion
agreement by failing to report to his probation officer, failing to enroll in a
rehabilitation program, and failing to pay restitution. Based upon Witham’s non-
compliance, the parties agreed to a graduated sanction of additional jail time in
May 2019. Despite imposition of the graduated sanction, Witham again failed to
report to his probation officer. He was also charged with two counts of public
intoxication.7 The Commonwealth then sought to set aside Witham’s pretrial
diversion agreement.
At the voidance hearing, Witham’s probation officer testified Witham
had not reported to him in more than a year and had received new misdemeanor
charges. Witham presented no witnesses but argued that his new public
intoxication charges were indicative of his untreated substance abuse problem and
requested to remain in jail until he could enter long-term residential treatment.
In its order setting aside Witham’s pretrial diversion agreement, the
circuit court made the following findings of fact:
Considering the evidence as a whole, the [c]ourt concludes as a matter of law that [Witham] has violated his probation in that he has failed to report to his probation officer, has been arrested on two misdemeanor
7 KRS 525.100, a Class B misdemeanor.
-4- charges, and has used controlled substances, which are prohibited to him. Given the history of [Witham’s] substance abuse, and the fact that he has completely failed to report to his probation officer in more than a year’s time on probation, the [c]ourt concludes that he is a danger to himself and a danger to the public because of his failure to so report. The [c]ourt therefore concludes that [Witham’s] pretrial diversion on all three cases should be set aside, and [Witham] sentenced appropriately.
R. at 117. Subsequently, Witham’s sentence of ten years’ imprisonment was
imposed. This appeal followed.
STANDARD OF REVIEW
Witham’s singular argument on appeal is the circuit court abused its
discretion by failing to make the findings of fact required by KRS 439.3106(1)(a)
when it voided his pretrial diversion agreement. Witham concedes he did not
object to the circuit court’s failure to make the requisite findings below and now
requests review for palpable error.
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.
-5- RCr8 10.26. An error is palpable only where it is “clear or plain under current
law[.]” Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009) (citation
omitted).
ANALYSIS
Under 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[.]” This can only be read as an
“unqualified invocation” of the criteria for revocation of probation in KRS
439.3106. Richardson v. Commonwealth, 494 S.W.3d 495, 499 (Ky. App. 2015).
Under KRS 439.3106(1)(a), probation can be revoked “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[.]” Both of these findings are necessary
for a circuit court to set aside a defendant’s pretrial diversion agreement. Compise
v. Commonwealth, 597 S.W.3d 175, 180 (Ky. App. 2020) (citation omitted).
Although Witham’s violations of supervision may be sufficient to
void his pretrial diversion agreement, the circuit court failed to make the requisite
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RENDERED: DECEMBER 23, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0068-MR
GREGORY WITHAM APPELLANT
APPEAL FROM LAWRENCE CIRCUIT COURT v. HONORABLE JOHN DAVID PRESTON, JUDGE ACTION NO. 18-CR-00106
COMMONWEALTH OF KENTUCKY APPELLEE
AND NO. 2020-CA-0069-MR
APPEAL FROM LAWRENCE CIRCUIT COURT v. HONORABLE JOHN DAVID PRESTON, JUDGE ACTION NO. 18-CR-00100
COMMONWEALTH OF KENTUCKY APPELLEE AND NO. 2020-CA-0070-MR
APPEAL FROM LAWRENCE CIRCUIT COURT v. HONORABLE JOHN DAVID PRESTON, JUDGE ACTION NO. 18-CR-00102
OPINION VACATING AND REMANDING
** ** ** ** **
BEFORE: GOODWINE, MCNEILL, AND L. THOMPSON, JUDGES.
GOODWINE, JUDGE: Gregory Allen Witham (“Witham”) appeals the December
23, 2019 orders of the Lawrence Circuit Court imposing a sentence of ten years’
imprisonment after voiding his pretrial diversion agreement.1 After careful review,
we vacate and remand.
1 Witham’s pretrial diversion agreement was voided by separate orders of the court on November 15, 2019. Those orders were not identified in Witham’s notices of appeal or attached as appendices to his briefs but were entered into the record. Record (“R.”) at 115-17.
-2- BACKGROUND
The facts in this matter are uncontested. In 2018, Witham pled guilty
to charges in three separate but related criminal cases.2 In 18-CR-00100, Witham
pled guilty to one count of possession of a controlled substance in the first degree3
and was sentenced to two years’ imprisonment. In 18-CR-00102, Witham pled
guilty to two counts of receiving stolen property under $10,000.004 and was
sentenced to five years’ imprisonment. In 18-CR-00106, Witham pled guilty to
one count of possession of a controlled substance in the first degree, one count of
tampering with physical evidence,5 and one count of resisting arrest.6 He was
sentenced to three years’ imprisonment for the possession charge, three years’
imprisonment for the tampering charge, and twelve months’ imprisonment for
resisting arrest, all to be served concurrently for a total of three years’
imprisonment. Consistent with his plea agreement, Witham was sentenced to serve
2 The three criminal actions were considered by the circuit court jointly. As the relevant portions of the circuit court records in the three cases are nearly identical, citations in this opinion will be made to the record in 2020-CA-0068-MR. 3 Kentucky Revised Statutes (“KRS”) 218A.1415, a Class D felony. 4 KRS 514.110, a Class D felony. 5 KRS 524.100, a Class D felony. 6 KRS 520.090, a Class A misdemeanor.
-3- the terms in the three cases consecutively for a total of ten years’ imprisonment,
diverted for five years.
Witham failed to comply with the terms of his pretrial diversion
agreement by failing to report to his probation officer, failing to enroll in a
rehabilitation program, and failing to pay restitution. Based upon Witham’s non-
compliance, the parties agreed to a graduated sanction of additional jail time in
May 2019. Despite imposition of the graduated sanction, Witham again failed to
report to his probation officer. He was also charged with two counts of public
intoxication.7 The Commonwealth then sought to set aside Witham’s pretrial
diversion agreement.
At the voidance hearing, Witham’s probation officer testified Witham
had not reported to him in more than a year and had received new misdemeanor
charges. Witham presented no witnesses but argued that his new public
intoxication charges were indicative of his untreated substance abuse problem and
requested to remain in jail until he could enter long-term residential treatment.
In its order setting aside Witham’s pretrial diversion agreement, the
circuit court made the following findings of fact:
Considering the evidence as a whole, the [c]ourt concludes as a matter of law that [Witham] has violated his probation in that he has failed to report to his probation officer, has been arrested on two misdemeanor
7 KRS 525.100, a Class B misdemeanor.
-4- charges, and has used controlled substances, which are prohibited to him. Given the history of [Witham’s] substance abuse, and the fact that he has completely failed to report to his probation officer in more than a year’s time on probation, the [c]ourt concludes that he is a danger to himself and a danger to the public because of his failure to so report. The [c]ourt therefore concludes that [Witham’s] pretrial diversion on all three cases should be set aside, and [Witham] sentenced appropriately.
R. at 117. Subsequently, Witham’s sentence of ten years’ imprisonment was
imposed. This appeal followed.
STANDARD OF REVIEW
Witham’s singular argument on appeal is the circuit court abused its
discretion by failing to make the findings of fact required by KRS 439.3106(1)(a)
when it voided his pretrial diversion agreement. Witham concedes he did not
object to the circuit court’s failure to make the requisite findings below and now
requests review for palpable error.
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.
-5- RCr8 10.26. An error is palpable only where it is “clear or plain under current
law[.]” Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009) (citation
omitted).
ANALYSIS
Under 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[.]” This can only be read as an
“unqualified invocation” of the criteria for revocation of probation in KRS
439.3106. Richardson v. Commonwealth, 494 S.W.3d 495, 499 (Ky. App. 2015).
Under KRS 439.3106(1)(a), probation can be revoked “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[.]” Both of these findings are necessary
for a circuit court to set aside a defendant’s pretrial diversion agreement. Compise
v. Commonwealth, 597 S.W.3d 175, 180 (Ky. App. 2020) (citation omitted).
Although Witham’s violations of supervision may be sufficient to
void his pretrial diversion agreement, the circuit court failed to make the requisite
findings under KRS 439.3106(1)(a). Instead, the circuit court simply found that
8 Kentucky Rules of Criminal Procedure.
-6- Witham was a “danger to himself and a danger to the public” due to his failure to
report to his probation officer. R. at 117. Despite the Commonwealth’s request to
the contrary, we cannot assume the circuit court intended to find Witham to be a
significant risk to the community. Furthermore, the circuit court failed to consider
whether Witham could be appropriately managed in the community. “Because the
circuit court failed to make findings under both elements of KRS 439.3106(1), we
may not review the sufficiency of the evidence for those findings.” Price v.
Commonwealth, 534 S.W.3d 805, 807 (Ky. App. 2017) (citation omitted). The
circuit court’s failure to make the requisite findings under KRS 439.3106(1)(a)
constitutes a palpable error. On remand, upon full consideration of KRS
439.3106(1), the circuit court shall make findings as to both statutory elements
before concluding whether voiding Witham’s pretrial diversion agreement or a
lesser sanction is most appropriate.
CONCLUSION
We vacate the orders of the Lawrence Circuit Court voiding Witham’s
pretrial diversion agreement and imposing his sentence and remand this matter to
the circuit court for additional findings.
ALL CONCUR.
-7- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Shannon Dupree Daniel Cameron Assistant Public Advocate Attorney General of Kentucky Frankfort, Kentucky Courtney Kay Han Assistant Attorney General Frankfort, Kentucky
-8-