RENDERED: MAY 21, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0609-MR
JAMES OAKLEY APPELLANT
APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE KATHLEEN S. LAPE, JUDGE ACTION NO. 17-CR-01222
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND MCNEILL, JUDGES.
DIXON, JUDGE: James Oakley appeals the order revoking probation entered by
the Kenton Circuit Court on April 17, 2020. Having reviewed the record, briefs,
and law, we affirm. FACTS AND PROCEDURAL BACKGROUND
On May 8, 2018, Oakley was convicted of possession of a controlled
substance first degree1 and sentenced to two years to serve, probated for three
years. On June 14, 2018, the Department of Corrections (DOC) filed a supervision
report stating that Oakley had admitted to heroin use, thereby violating the terms of
his probation, and recommending that he be assessed for treatment options.
On July 10, 2018, DOC reported that Oakley absconded from the
long-term substance abuse treatment facility to which he had been referred, failed
to complete treatment for substance abuse, and failed to report to his probation
officer. DOC recommended a warrant be issued and Oakley’s probation be
revoked. On February 12, 2019, DOC reported that Oakley had been arrested on a
new charge, robbery first degree,2 in Fayette County and again recommended
revocation of his probation.
A hearing was held on April 13, 2020, regarding DOC’s reports of
July 10, 2018, and February 12, 2019. Oakley, through counsel, stipulated to the
reports and stated that in April 2019, he pled guilty to attempted robbery in the
1 Kentucky Revised Statutes (KRS) 218A.1415, a class D felony. 2 KRS 515.020, a class B felony.
-2- second degree,3 promoting contraband in the first degree,4 and being a persistent
felony offender in the second degree.5 Oakley’s counsel requested that the court
continue Oakley’s probation and cited his participation in correctional programs,
including Anger Management, Moral Reconation Therapy, Substance Abuse
Program, Portals, and Inside Out Dad, during his current incarceration as evidence
that he could be successful. The Commonwealth opposed and argued for
revocation.
Ruling from the bench, the court made oral findings, noting that prior
to sentencing Oakley had failed to report for a meeting regarding his pre-sentence
investigation and had a prior criminal offense, a probation violation, and a federal
drug charge. The court observed that Oakley had failed to improve his conduct
since his sentencing hearing and, therefore, revoked Oakley’s probation, reinstated
his two-year sentence, and ordered, over Oakley’s objection, that the reinstated
sentence run consecutively to his Fayette County sentence. In closing, the court
found that Oakley had a significant criminal history, had a history of non-
compliance in this case, had warrants issued against him, had failed to appear
before his parole officer, and had been arrested for absconding.
3 KRS 506.010(4)(d) and 515.030, a class A misdemeanor. 4 KRS 520.050, a class D felony. 5 KRS 532.080(2).
-3- A written order was entered on April 17, 2020, wherein the court
noted Oakley’s stipulations to violating his probation by absconding, failing to
attend treatment for substance abuse, failing to report as directed to his probation
officer, and being arrested on a new felony charge. Based on these actions, the
court found that revocation was necessary because Oakley could not be
appropriately supervised. Reciting KRS 439.3106, the court further found that
Oakley’s actions constituted a significant risk to prior victims or the community at
large and that Oakley could not be appropriately managed in the community.
Oakley timely appealed.
ANALYSIS
Oakley’s first claim is that revocation was in error where the court
rendered merely perfunctory findings which do not support the court’s conclusions
that he posed a significant risk to the community and that he could not be
appropriately managed in the community. Oakley asserts this claim is preserved
by his counsel’s request that his probation be continued and by the fact these
findings are mandated by KRS 439.3106.6 The Commonwealth disagrees, and
citing Lainhart v. Commonwealth, 534 S.W.3d 234, 237 (Ky. App. 2017), argues
Oakley was required to specifically request additional findings to preserve this
6 In the alternative, Oakley requested a review for palpable error.
-4- claim. We agree with the Commonwealth that the claim is not adequately
preserved. Accordingly, our review is limited to whether there was a palpable
error that affected Oakley’s substantial rights and resulted in manifest injustice.
RCr7 10.26.
KRS 439.3106(1) requires that a court consider whether a
probationer’s violation of the conditions of supervision constitutes a significant
risk to prior victims or the community at large and whether the probationer can be
appropriately managed in the community before deciding to revoke probation.
Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014). Courts must
demonstrate their consideration of the statute by rendering either oral or written
findings. Commonwealth v. Gilmore, 587 S.W.3d 627, 630 (Ky. 2019). Findings
which merely recite the statutory language are not sufficient. Id. “Rather, ‘[t]here
must be proof in the record established by a preponderance of the evidence that a
defendant violated the terms of his release and the statutory criteria for revocation
has been met.’” Id. (quoting Helms v. Commonwealth, 475 S.W.3d 637, 645 (Ky.
App. 2015)).
While Oakley takes umbrage with the lack of detailed findings, as
noted by the Gilmore Court, KRS 439.3106 requires only that the findings be made
and supported by evidence. 587 S.W.3d at 631. Herein, the court’s remarks
7 Kentucky Rules of Criminal Procedure.
-5- during the revocation hearing and the express findings of the written order
demonstrate compliance with the dictates of KRS 439.3106(1). Moreover, the
decision was supported by the evidence in that Oakley was unwilling or unable to
complete treatment for his substance use and committed new offenses, including
attempted robbery.
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RENDERED: MAY 21, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0609-MR
JAMES OAKLEY APPELLANT
APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE KATHLEEN S. LAPE, JUDGE ACTION NO. 17-CR-01222
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND MCNEILL, JUDGES.
DIXON, JUDGE: James Oakley appeals the order revoking probation entered by
the Kenton Circuit Court on April 17, 2020. Having reviewed the record, briefs,
and law, we affirm. FACTS AND PROCEDURAL BACKGROUND
On May 8, 2018, Oakley was convicted of possession of a controlled
substance first degree1 and sentenced to two years to serve, probated for three
years. On June 14, 2018, the Department of Corrections (DOC) filed a supervision
report stating that Oakley had admitted to heroin use, thereby violating the terms of
his probation, and recommending that he be assessed for treatment options.
On July 10, 2018, DOC reported that Oakley absconded from the
long-term substance abuse treatment facility to which he had been referred, failed
to complete treatment for substance abuse, and failed to report to his probation
officer. DOC recommended a warrant be issued and Oakley’s probation be
revoked. On February 12, 2019, DOC reported that Oakley had been arrested on a
new charge, robbery first degree,2 in Fayette County and again recommended
revocation of his probation.
A hearing was held on April 13, 2020, regarding DOC’s reports of
July 10, 2018, and February 12, 2019. Oakley, through counsel, stipulated to the
reports and stated that in April 2019, he pled guilty to attempted robbery in the
1 Kentucky Revised Statutes (KRS) 218A.1415, a class D felony. 2 KRS 515.020, a class B felony.
-2- second degree,3 promoting contraband in the first degree,4 and being a persistent
felony offender in the second degree.5 Oakley’s counsel requested that the court
continue Oakley’s probation and cited his participation in correctional programs,
including Anger Management, Moral Reconation Therapy, Substance Abuse
Program, Portals, and Inside Out Dad, during his current incarceration as evidence
that he could be successful. The Commonwealth opposed and argued for
revocation.
Ruling from the bench, the court made oral findings, noting that prior
to sentencing Oakley had failed to report for a meeting regarding his pre-sentence
investigation and had a prior criminal offense, a probation violation, and a federal
drug charge. The court observed that Oakley had failed to improve his conduct
since his sentencing hearing and, therefore, revoked Oakley’s probation, reinstated
his two-year sentence, and ordered, over Oakley’s objection, that the reinstated
sentence run consecutively to his Fayette County sentence. In closing, the court
found that Oakley had a significant criminal history, had a history of non-
compliance in this case, had warrants issued against him, had failed to appear
before his parole officer, and had been arrested for absconding.
3 KRS 506.010(4)(d) and 515.030, a class A misdemeanor. 4 KRS 520.050, a class D felony. 5 KRS 532.080(2).
-3- A written order was entered on April 17, 2020, wherein the court
noted Oakley’s stipulations to violating his probation by absconding, failing to
attend treatment for substance abuse, failing to report as directed to his probation
officer, and being arrested on a new felony charge. Based on these actions, the
court found that revocation was necessary because Oakley could not be
appropriately supervised. Reciting KRS 439.3106, the court further found that
Oakley’s actions constituted a significant risk to prior victims or the community at
large and that Oakley could not be appropriately managed in the community.
Oakley timely appealed.
ANALYSIS
Oakley’s first claim is that revocation was in error where the court
rendered merely perfunctory findings which do not support the court’s conclusions
that he posed a significant risk to the community and that he could not be
appropriately managed in the community. Oakley asserts this claim is preserved
by his counsel’s request that his probation be continued and by the fact these
findings are mandated by KRS 439.3106.6 The Commonwealth disagrees, and
citing Lainhart v. Commonwealth, 534 S.W.3d 234, 237 (Ky. App. 2017), argues
Oakley was required to specifically request additional findings to preserve this
6 In the alternative, Oakley requested a review for palpable error.
-4- claim. We agree with the Commonwealth that the claim is not adequately
preserved. Accordingly, our review is limited to whether there was a palpable
error that affected Oakley’s substantial rights and resulted in manifest injustice.
RCr7 10.26.
KRS 439.3106(1) requires that a court consider whether a
probationer’s violation of the conditions of supervision constitutes a significant
risk to prior victims or the community at large and whether the probationer can be
appropriately managed in the community before deciding to revoke probation.
Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014). Courts must
demonstrate their consideration of the statute by rendering either oral or written
findings. Commonwealth v. Gilmore, 587 S.W.3d 627, 630 (Ky. 2019). Findings
which merely recite the statutory language are not sufficient. Id. “Rather, ‘[t]here
must be proof in the record established by a preponderance of the evidence that a
defendant violated the terms of his release and the statutory criteria for revocation
has been met.’” Id. (quoting Helms v. Commonwealth, 475 S.W.3d 637, 645 (Ky.
App. 2015)).
While Oakley takes umbrage with the lack of detailed findings, as
noted by the Gilmore Court, KRS 439.3106 requires only that the findings be made
and supported by evidence. 587 S.W.3d at 631. Herein, the court’s remarks
7 Kentucky Rules of Criminal Procedure.
-5- during the revocation hearing and the express findings of the written order
demonstrate compliance with the dictates of KRS 439.3106(1). Moreover, the
decision was supported by the evidence in that Oakley was unwilling or unable to
complete treatment for his substance use and committed new offenses, including
attempted robbery. Accordingly, we find no error.
Oakley’s second claim is that the court erred when it ordered his
reinstated Kenton County sentence to run consecutively to his new Fayette County
sentence. Oakley argues that, pursuant to KRS 533.040(3), the court, as a matter
of law, was required to run his sentences concurrently because his probation was
not revoked within 90 days of the date the grounds for revocation became known
to DOC. The Commonwealth, noting that a court speaks only through its written
orders, Kindred Nursing Centers Limited Partnership v. Sloan, 329 S.W.3d 347,
349 (Ky. App. 2010), argues the claim is not properly before this Court because the
judgment is silent on the issue. Alternatively, the Commonwealth argues the court
did not err where KRS 533.060(2) mandates consecutive sentencing.
We agree that the claim is not properly before this Court where the
judgment does not order consecutive sentencing. As such, we decline to address
the matter.
-6- CONCLUSION
Therefore, and for the foregoing reasons, the Kenton Circuit Court’s
order revoking probation is hereby AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Brandon Neil Jewell Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky
Molly Mattingly E. Bedelle Lucas Frankfort, Kentucky Assistant Attorney General Frankfort, Kentucky
-7-