RENDERED: MAY 27, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0875-MR
JAMES FLENNER APPELLANT
APPEAL FROM MADISON CIRCUIT COURT v. HONORABLE COLE A. MAIER, JUDGE ACTION NO. 17-CR-00601
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, TAYLOR, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: James Flenner appeals from an order of the Madison
Circuit Court which denied his motion for probation. We find no error and affirm.
FACTS AND PROCEDURAL HISTORY
On April 5, 2018, Appellant pleaded guilty to multiple criminal counts
revolving around him sexually abusing his two minor sisters. Appellant had been abusing his sisters for a year-long period starting when he was 15 years old.1
Pursuant to the guilty plea, the Commonwealth recommended a sentence of fifteen
years in prison. On June 7, 2018, the trial court sentenced Appellant in accordance
with the Commonwealth’s recommendation.
Appellant’s eighteenth birthday was the following week; therefore, he
requested that he remain with the Department of Juvenile Justice (DJJ) pursuant to
Kentucky Revised Statutes (KRS) 640.030(2)(b), which allows youthful offenders
to remain with the DJJ after their eighteenth birthday in order to complete
treatment programs. Later, Appellant filed another motion requesting to remain
with the DJJ until he turned twenty-one years old. This is allowed pursuant to
KRS 640.075(1). The trial court granted this motion.
On May 19, 2021, one month before his twenty-first birthday,
Appellant filed a motion for probation. KRS 640.075(4) allows for such a
probation request. On June 28, 2021, a hearing was held on Appellant’s motion for
probation. Numerous witnesses testified, including his sisters. Both sisters
testified that they did not want to live with Appellant, but that they wanted him
released from prison.
At the conclusion of the hearing, the trial court denied the motion for
probation. The trial judge discussed the evidence presented and the relevant
1 Appellant was being prosecuted as a youthful offender.
-2- probation statutes. The trial judge believed that because Appellant’s crime was
especially heinous, granting him probation would unduly depreciate the
seriousness of Appellant’s crimes. An order was later entered and this appeal
followed.
ANALYSIS
We review a trial court’s probation determination under the abuse of
discretion standard. Howard v. Commonwealth, 496 S.W.3d 471, 475 (Ky. 2016).
“The test for abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999). KRS 533.010(2) describes what a trial
court should consider when determining whether to probate an offender. KRS
533.010(2) states:
Before imposition of a sentence of imprisonment, the court shall consider probation, probation with an alternative sentencing plan, or conditional discharge. Unless the defendant is a violent felon as defined in KRS 439.3401 or a statute prohibits probation, shock probation, or conditional discharge, after due consideration of the defendant’s risk and needs assessment, nature and circumstances of the crime, and the history, character, and condition of the defendant, probation or conditional discharge shall be granted, unless the court is of the opinion that imprisonment is necessary for protection of the public because:
(a) There is substantial risk that during a period of probation or conditional discharge the defendant will commit another crime;
-3- (b) The defendant is in need of correctional treatment that can be provided most effectively by his commitment to a correctional institution; or
(c) A disposition under this chapter will unduly depreciate the seriousness of the defendant’s crime.
With the standard of review in mind and the relevant statute cited, we
now turn to Appellant’s first argument on appeal. Appellant argues that the trial
court erred in denying his motion for probation because the victims of his crimes
supported probation. Appellant argues that granting him probation would not
unduly depreciate the seriousness of his crimes because his sisters wanted him
released from prison. In addition, Appellant claims that the four years of treatment
with the DJJ should weigh in favor of granting probation.
We find no error in the denial of Appellant’s motion for probation. At
the end of the probation hearing, the trial judge discussed KRS 533.010(2) and
each of the three factors in that statute. While the trial judge congratulated
Appellant for availing himself of the programs offered by the DJJ, she concluded
that his crimes were too serious to grant him probation. “[T]he record clearly
reflects that the trial court thoughtfully evaluated both the defendant’s character
and condition and the nature and circumstances of the crime he committed. . . .
The decision to remand Appellant to the Department of Corrections was
thoughtfully made and in no way arbitrary.” Johnson v. Commonwealth, 967
S.W.2d 12, 15-16 (Ky. 1998).
-4- Appellant committed serious crimes against his sisters. The trial court
took into consideration his age at the time of the crimes, his actions toward
rehabilitation while with the DJJ, and the feelings of his sisters. Yes, the sisters
did say that their brother should be granted probation, but they also stated that they
did not feel comfortable living with him. The crimes Appellant committed were
not just serious as they relate to his sisters, but were serious crimes against society
as a whole. The trial court did not abuse its discretion in denying Appellant’s
motion for probation.2
Appellant’s second argument on appeal is that the trial court should
have given considerable weight to Section 26A of the Kentucky Constitution, also
known as Marsy’s Law. KY. CONST. § 26A is a victims’ rights law that gives
victims of crime certain rights. Generally, it allows crime victims to be kept
informed of criminal proceedings and be given certain information regarding the
person accused of committing the crime against them. Appellant argues that
because Marsy’s Law gives victims of crimes additional rights regarding the
criminal process, the requests of victims should be given extra weight. As it
pertains to this case, Appellant argues that because of Marsy’s Law, the trial court
2 The Commonwealth argues that Appellant was not eligible for probation due to the nature of his crimes. The trial court held that Appellant was eligible to be considered for probation and the Commonwealth did not appeal that holding. We will not address this argument.
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RENDERED: MAY 27, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0875-MR
JAMES FLENNER APPELLANT
APPEAL FROM MADISON CIRCUIT COURT v. HONORABLE COLE A. MAIER, JUDGE ACTION NO. 17-CR-00601
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, TAYLOR, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: James Flenner appeals from an order of the Madison
Circuit Court which denied his motion for probation. We find no error and affirm.
FACTS AND PROCEDURAL HISTORY
On April 5, 2018, Appellant pleaded guilty to multiple criminal counts
revolving around him sexually abusing his two minor sisters. Appellant had been abusing his sisters for a year-long period starting when he was 15 years old.1
Pursuant to the guilty plea, the Commonwealth recommended a sentence of fifteen
years in prison. On June 7, 2018, the trial court sentenced Appellant in accordance
with the Commonwealth’s recommendation.
Appellant’s eighteenth birthday was the following week; therefore, he
requested that he remain with the Department of Juvenile Justice (DJJ) pursuant to
Kentucky Revised Statutes (KRS) 640.030(2)(b), which allows youthful offenders
to remain with the DJJ after their eighteenth birthday in order to complete
treatment programs. Later, Appellant filed another motion requesting to remain
with the DJJ until he turned twenty-one years old. This is allowed pursuant to
KRS 640.075(1). The trial court granted this motion.
On May 19, 2021, one month before his twenty-first birthday,
Appellant filed a motion for probation. KRS 640.075(4) allows for such a
probation request. On June 28, 2021, a hearing was held on Appellant’s motion for
probation. Numerous witnesses testified, including his sisters. Both sisters
testified that they did not want to live with Appellant, but that they wanted him
released from prison.
At the conclusion of the hearing, the trial court denied the motion for
probation. The trial judge discussed the evidence presented and the relevant
1 Appellant was being prosecuted as a youthful offender.
-2- probation statutes. The trial judge believed that because Appellant’s crime was
especially heinous, granting him probation would unduly depreciate the
seriousness of Appellant’s crimes. An order was later entered and this appeal
followed.
ANALYSIS
We review a trial court’s probation determination under the abuse of
discretion standard. Howard v. Commonwealth, 496 S.W.3d 471, 475 (Ky. 2016).
“The test for abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999). KRS 533.010(2) describes what a trial
court should consider when determining whether to probate an offender. KRS
533.010(2) states:
Before imposition of a sentence of imprisonment, the court shall consider probation, probation with an alternative sentencing plan, or conditional discharge. Unless the defendant is a violent felon as defined in KRS 439.3401 or a statute prohibits probation, shock probation, or conditional discharge, after due consideration of the defendant’s risk and needs assessment, nature and circumstances of the crime, and the history, character, and condition of the defendant, probation or conditional discharge shall be granted, unless the court is of the opinion that imprisonment is necessary for protection of the public because:
(a) There is substantial risk that during a period of probation or conditional discharge the defendant will commit another crime;
-3- (b) The defendant is in need of correctional treatment that can be provided most effectively by his commitment to a correctional institution; or
(c) A disposition under this chapter will unduly depreciate the seriousness of the defendant’s crime.
With the standard of review in mind and the relevant statute cited, we
now turn to Appellant’s first argument on appeal. Appellant argues that the trial
court erred in denying his motion for probation because the victims of his crimes
supported probation. Appellant argues that granting him probation would not
unduly depreciate the seriousness of his crimes because his sisters wanted him
released from prison. In addition, Appellant claims that the four years of treatment
with the DJJ should weigh in favor of granting probation.
We find no error in the denial of Appellant’s motion for probation. At
the end of the probation hearing, the trial judge discussed KRS 533.010(2) and
each of the three factors in that statute. While the trial judge congratulated
Appellant for availing himself of the programs offered by the DJJ, she concluded
that his crimes were too serious to grant him probation. “[T]he record clearly
reflects that the trial court thoughtfully evaluated both the defendant’s character
and condition and the nature and circumstances of the crime he committed. . . .
The decision to remand Appellant to the Department of Corrections was
thoughtfully made and in no way arbitrary.” Johnson v. Commonwealth, 967
S.W.2d 12, 15-16 (Ky. 1998).
-4- Appellant committed serious crimes against his sisters. The trial court
took into consideration his age at the time of the crimes, his actions toward
rehabilitation while with the DJJ, and the feelings of his sisters. Yes, the sisters
did say that their brother should be granted probation, but they also stated that they
did not feel comfortable living with him. The crimes Appellant committed were
not just serious as they relate to his sisters, but were serious crimes against society
as a whole. The trial court did not abuse its discretion in denying Appellant’s
motion for probation.2
Appellant’s second argument on appeal is that the trial court should
have given considerable weight to Section 26A of the Kentucky Constitution, also
known as Marsy’s Law. KY. CONST. § 26A is a victims’ rights law that gives
victims of crime certain rights. Generally, it allows crime victims to be kept
informed of criminal proceedings and be given certain information regarding the
person accused of committing the crime against them. Appellant argues that
because Marsy’s Law gives victims of crimes additional rights regarding the
criminal process, the requests of victims should be given extra weight. As it
pertains to this case, Appellant argues that because of Marsy’s Law, the trial court
2 The Commonwealth argues that Appellant was not eligible for probation due to the nature of his crimes. The trial court held that Appellant was eligible to be considered for probation and the Commonwealth did not appeal that holding. We will not address this argument.
-5- should have granted Appellant’s motion for probation because his sisters requested
that he be let out of prison.
This argument has no merit. Marsy’s Law does not require a trial
court to defer to the wants of crime victims. Here, the trial court heard the
testimony of Appellant’s sisters and considered what they had to say. Nothing
more is required.
Finally, Appellant makes a general argument that denying Appellant
probation violates a few sections of the Kentucky Constitution and United States
Constitution. Appellant does not discuss this claim in any detail; therefore, we will
not address it. “It is not our function as an appellate court to research and construct
a party’s legal arguments. We will not search the record to construct [Appellant’s]
argument for him, nor will we go on a fishing expedition to find support for his
underdeveloped arguments.” Prescott v. Commonwealth, 572 S.W.3d 913, 923
(Ky. App. 2019) (citation and quotation marks omitted).
CONCLUSION
Based on the foregoing, we affirm the judgment of the trial court. The
court did not abuse its discretion in denying Appellant’s motion for probation.
-6- TAYLOR, JUDGE, CONCURS.
CALDWELL, JUDGE, CONCURS IN RESULT ONLY AND FILES SEPARATE OPINION.
CALDWELL, JUDGE, CONCURRING: I agree with the result of affirming the
trial court. However, I believe it is necessary to discuss the implications of
Kentucky Revised Statute (KRS) 532.045 and Commonwealth v. Taylor, 945
S.W.2d 420 (Ky. 1997), to this case.
The Commonwealth argues that Appellant is not eligible for probation
as his conviction falls under the purview of KRS 532.045(2), making him
ineligible. Appellant argues that the Commonwealth failed to raise this argument to
the trial court and, therefore, is precluded from arguing it on appeal. However,
under certain circumstances, this Court will consider issues not raised. “When the
facts reveal a fundamental basis for decision not presented by the parties, it is our
duty to address the issue to avoid a misleading application of the law.” Mitchell v.
Hadl, 816 S.W.2d 183, 185 (Ky. 1991). I believe this to be the case here.
Kentucky precedent holds that youthful offenders who satisfy the
criteria of KRS 532.045(2) may not be granted probation at an age-eighteen
hearing, even though KRS 640.030 lists probation as a dispositional alternative at
those hearings. Taylor, supra. Therefore, I would affirm the trial court’s denial of
Appellant’s KRS 640.075(4) motion for reconsideration of probation.
-7- Appellant argues that the holding in Commonwealth v. Merriman, 265
S.W.3d 196 (Ky. 2008), should prevail. Appellant also correctly points out that a
challenge to Taylor is currently pending in our Supreme Court in Bloyer v.
Commonwealth, No. 2020-SC-0473-DG.
Merriman involved whether the Violent Offender Statute, KRS
439.3401, applied to youthful offenders. Taylor specifically addresses whether a
youthful offender was barred from consideration for probation pursuant to KRS
532.045(2) and held that he was. Taylor is on point and I believe must be
followed, including in the case at hand, unless and until specifically overturned by
our Supreme Court.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Laura A. Karem Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky
Aspen Roberts Assistant Attorney General Frankfort, Kentucky
-8-