RENDERED: JANUARY 2, 2026; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1501-MR
JAMES RANDALL NANTZ APPELLANT
APPEAL FROM HARLAN CIRCUIT COURT v. HONORABLE KENT HENDRICKSON, JUDGE ACTION NO. 19-CR-00065
COMMONWEALTH OF KENTUCKY APPELLEE
AND
NO. 2024-CA-1502-MR
APPEAL FROM HARLAN CIRCUIT COURT v. HONORABLE KENT HENDRICKSON, JUDGE ACTION NO. 20-CR-00017
NO. 2024-CA-1503-MR
JAMES RANDALL NANTZ APPELLANT APPEAL FROM HARLAN CIRCUIT COURT v. HONORABLE KENT HENDRICKSON, JUDGE ACTION NO. 20-CR-00170
NO. 2024-CA-1504-MR
APPEAL FROM HARLAN CIRCUIT COURT v. HONORABLE KENT HENDRICKSON, JUDGE ACTION NO. 20-CR-00178
NO. 2024-CA-1505-MR
APPEAL FROM HARLAN CIRCUIT COURT v. HONORABLE KENT HENDRICKSON, JUDGE ACTION NO. 21-CR-00020
-2- AND
NO. 2024-CA-1506-MR
APPEAL FROM HARLAN CIRCUIT COURT v. HONORABLE KENT HENDRICKSON, JUDGE ACTION NO. 21-CR-00021
NO. 2024-CA-1507-MR
APPEAL FROM HARLAN CIRCUIT COURT v. HONORABLE KENT HENDRICKSON, JUDGE ACTION NO. 21-CR-00081
NO. 2024-CA-1508-MR
-3- APPEAL FROM HARLAN CIRCUIT COURT v. HONORABLE KENT HENDRICKSON, JUDGE ACTION NO. 21-CR-00102
OPINION AFFIRMING
** ** ** ** **
BEFORE: ECKERLE, MCNEILL, AND MOYNAHAN, JUDGES.
ECKERLE, JUDGE: Appellant, James Randall Nantz (“Nantz”), seeks review of
the Harlan Circuit Court’s Orders Revoking Probation (collectively, the “Orders”).
After careful review, we affirm, as the Trial Court made the mandatory statutory
findings, and the record on appeal supports the rulings.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal arises from Nantz’s multi-year crime spree, eight criminal
cases, and dozens of charges. On September 21, 2023, Nantz entered into a plea
agreement in which he admitted guilt to a total of 25 criminal charges in exchange
for a cumulative sentence of 12 years; however, the agreement did not call for
incarceration; rather, Nantz would be probated for five years.1 On November 15,
1 The eight case numbers and corresponding charges Nantz pled guilty to committing are as follows: 19-CR-00065, two counts of first-degree wanton endangerment and one count of being a persistent felony offender in the second degree; 20-CR-00017, one count each of first-degree
-4- 2023, in accordance with the plea agreement, the Trial Court sentenced Nantz to 12
years, probated for five years under the supervision of Probation and Parole.2
Despite the large number and severity of his crimes, as well as his admitted guilt,
Nantz was not immediately sent to prison. As an additional condition of Nantz’s
probation, the Trial Court ordered him to complete a long-term, inpatient
rehabilitation program for a minimum of one year. Accordingly, on January 19,
2024, Nantz departed the Harlan County Detention Center and entered the
Addiction Recovery Care Program (“treatment program”) in Louisa, Kentucky.
Nantz was not able or willing to comply with the terms of his probation, including
his participation in the treatment program, for long. On June 7, 2024, Nantz
unilaterally quit the program against staff advice and without reporting or
contacting Probation and Parole.
fleeing or evading, first-degree wanton endangerment, and reckless driving; 20-CR-00170, one count of receiving stolen property under $10,000; 20-CR-00178, two counts of second-degree fleeing or evading police; 21-CR-00020, one count each of first-degree possession of a controlled substance, leaving the scene of an accident, first-degree criminal mischief, and first- degree fleeing or evading; 21-CR-00021, one count of theft by unlawful taking (auto) over $500 but under $10,000; 21-CR-00081, two counts of receiving stolen property under $10,000; 21- CR-00102, one count each of second-degree fleeing or evading, receiving stolen property under $10,000, obscuring identity of machine or other property over $500 but under $10,000, operating a motor vehicle under the influence of alcohol, failure of owner to maintain required insurance, and failure to produce insurance card, careless driving, and first-degree fleeing or evading. The Trial Court’s eight Final Judgments on Guilty Plea all stated that the sentences on each charge shall run concurrently for a total of 12 years’ imprisonment, probated for five years. 2 A “‘supervised individual’ means an individual placed on probation . . . by a court or serving a period of parole or post-release supervision from prison or jail.” Kentucky Revised Statutes (“KRS”) 439.250(12).
-5- Days later, on June 12, 2024, Probation and Parole Officer Jonathan
Creech (“Creech”) filed a Violation of Supervision Report (“Report”) documenting
two violations. Record on Appeal (“ROA”),3 pp. 275-76. First, Nantz failed to
complete inpatient substance-abuse treatment. Second, Nantz absconded from
supervision by failing to contact Probation and Parole. The Trial Court
subsequently issued a bench warrant for Nantz’s arrest.
Two months later, in August of 2024, an off-duty Probation and
Parole officer allegedly recognized Nantz at a private event. The officer, who was
familiar with Nantz and was aware that he had absconded from supervision,
contacted the Kentucky State Police (“KSP”). Upon KSP’s arrival at the scene,
officers attempted to make contact with Nantz, who was driving a four-wheel, all-
terrain vehicle. According to Creech’s testimony at a subsequent hearing, Nantz
evaded KSP officers by jumping off the vehicle and running into a nearby wooded
area. The incident did not result in any charges against Nantz.
At some point during his time on the lam, Nantz travelled to Virginia
where he resided with his mother, son, and girlfriend until his arrest on September
3 The record on appeal comprises eight criminal cases, consisting of numerous volumes. As the relevant documents are substantively duplicative for purposes of this consolidated appeal, and in consideration that the Trial Court held a single revocation hearing for all eight cases, the Court cites to the paginated record in the lead criminal case, Commonwealth v. Nantz, 19-CR-00065, Court of Appeals Case No. 2024-CA-1501-MR.
-6- 26, 2024. Nantz was then extradited to Kentucky. On October 15, 2024, the
Commonwealth filed a motion to revoke Nantz’s probation.
The Trial Court conducted the probation revocation hearing on
November 6, 2024. This evidentiary hearing consisted of the Report and the
testimony of both Creech and Nantz. At the beginning of the hearing, Nantz’s
counsel informed the Trial Court that the Commonwealth had no objection to
allowing Nantz to return to the treatment program. ROA Video Recording (“VR”),
11/6/2024, 10:53:05-14. The Commonwealth confirmed its agreement, stating that
“[Nantz] was doing well in rehab . . . and his mother is very ill . . . and [Nantz] left,
but . . . we encourage him to finish out his rehab without problems.” Id. at
10:53:17-41. The Commonwealth offered continued leniency, noting Nantz’s
cooperation in obtaining convictions for others charged with crimes and its
willingness “to give [Nantz] a second chance, particularly in light of his favorable
testimony in the Polly case . . . .”4 Id. at 10:53:49-56. At that point, the Trial
Court requested that both counsel approach the bench. A bench conference ensued
during which the Trial Court requested and received confirmation that there was no
“quid pro quo” for Nantz’s testimony in the Polly case. Id. at 10:54:8-25. When
4 The Polly case involved two brothers who were jointly tried and convicted of murder by complicity. During the trial, Nantz averred that one of the brothers detailed the crimes while the two shared a jail cell over an eight-month period. Commonwealth v. Fess Polly, 21-CR-00034 (Harlan Circuit Court) and Commonwealth v. Derrick Polly, 21-CR-00033 (Harlan Circuit Court).
-7- the Trial Court went back on the record, it stated, “[L]et’s have a hearing . . . . I
want to hear from Probation and Parole.” Id. at 10:54:25-29.
The evidentiary portion of the hearing commenced with Creech’s
testimony. Creech recounted the details of the Report, including Nantz’s
unauthorized departure from the treatment program on June 7, 2024, and his failure
to contact Probation and Parole. Creech testified that prior to June 7, 2024, Nantz
had not incurred any known violations at the treatment program. Creech then
relayed the alleged incident involving Nantz fleeing from law enforcement through
the woods. Creech admitted that he did not submit a second violation report
memorializing this incident, and law enforcement did not charge Nantz with any
additional crimes, including fleeing or evading.
Nantz’s counsel questioned Creech about Probation and Parole’s
ability to monitor Nantz if the Trial Court ordered him to complete the treatment
program. Creech confirmed that Probation and Parole could supervise Nantz
should he return to the treatment program. In addition, the Trial Court questioned
Creech about the circumstances of Nantz’s arrest in Virginia. According to
Creech, Nantz did not incur any new charges in Virginia and was therefore likely
arrested on the Court’s outstanding bench warrant.
Nantz also testified at the hearing, stating a positive impact from the
brief treatment program upon his life, including some alleged progress in his
-8- recovery journey before relapsing. Even though he quit voluntarily and against
advice, Nantz referred to the treatment program as “life changing.” VR,
11/6/2024, 11:02:01-02. Nantz further elucidated on his personal struggles. To
begin, Nantz testified that when he entered the treatment program, his mother’s
residence had just burned down in a fire. Nantz testified that the event was
distressing because his elderly mother cared for his nine-year-old son while he
attended the treatment program. Nantz stated that he persevered until early June
when he was informed that his mother was admitted into the Intensive Care Unit
(“ICU”) at the Harlan Hospital. With approval from Probation and Parole,
treatment program personnel authorized and facilitated Nantz’s visitation with his
mother in the ICU that very week. Nantz claimed that his mother’s prognosis was
“life threatening.” Id. at 11:03:17-18. Given his grandmother’s physical
deterioration and his father’s absence, Nantz’s son became distraught when the
visitation at the ICU ended, resulting in the boy physically clinging to his father.
Nantz emotionally recounted the angst he experienced when he left his son.
Nantz testified that he regretted his decision to leave the recovery
program a few days later, against staff advice and without permission from
Probation and Parole, but professed concern for his mother and son. He further
explained that he fled to Virginia because his girlfriend resided within the state,
and she was caring for his son while his mother remained hospitalized. His mother
-9- recovered, and when the hospital discharged her, Nantz transported her from
Kentucky to his girlfriend’s residence in Virginia where the family continued
residing. Upon his own counsel’s questioning, Nantz admitted that during this
time period he relapsed twice by using Suboxone, a controlled medication that he
had not been prescribed. Nantz concluded his testimony by requesting that the
Trial Court permit him to return to the treatment program, that further
rehabilitation would be beneficial, and that this time he would comply with the
terms of his probation.
Following the Commonwealth’s statement that it did not have any
questions for Nantz, the Trial Court proceeded with questioning. The Trial Court
asked Nantz for the reason that he chose Virginia for his place of abscondment.
Nantz again explained that his girlfriend resided in Virginia and permitted him, his
mother, and his son to live at the residence. Nantz also revealed that law
enforcement arrested him in Virginia for failure to pay fines on a prior case.
The Trial Court additionally questioned the Commonwealth regarding
Nantz’s testimony in the Polly case. The Trial Court stated, “I want to establish
something for the record . . . there was no quid pro quo . . . .” VR, 11/6/2024,
11:06:28-47. At that point, the Commonwealth interrupted the Trial Court,
responding “absolutely not.” Id. at 11:06:47-48. The Commonwealth informed
the Trial Court that Nantz’s assistance with the Polly case was his attempt to do
-10- “what’s right.” Id. at 11:07:20. The Commonwealth went so far as to state the
following: “[Nantz] has an addiction problem. His mother is trying to raise his
nine-year-old child . . . . He pled guilty to all these crimes, which were all drug
related . . . he needs rehab. He’s sick. He needs rehab. He needs all the
encouragement to get his life back on track.” Id. at 11:07:47.
At the close of the hearing, the Trial Court refrained from issuing its
decision, instead opting to take the matter under advisement. Less than two weeks
later, on November 18, 2024, the Trial Court issued the Orders revoking Nantz’s
probation in all eight cases. The Orders are substantively identical notwithstanding
the narration of Nantz’s case-specific charges and sentences. In the Orders, the
Trial Court recounted Creech’s testimony and Report, including the August 2024
KSP incident. Based on these grounds, the Trial Court found that Nantz violated
his probation by leaving the treatment program early without permission and by
absconding from Probation and Parole’s supervision. The Orders included the
statutory findings required pursuant to KRS 439.3106(1)(a). More specifically, the
Trial Court found that Nantz’s “failure to comply with the conditions of
supervision constitute a significant risk to prior victims of [Nantz] or the
community at large, and that [he] cannot be appropriately managed in the
community.” ROA, p. 298. Consequently, the Trial Court ordered Nantz to begin
serving his 12-year prison sentence.
-11- Nantz filed separate appeals from the Orders, which this Court
consolidated pursuant to Kentucky Rule of Appellate Procedure 2(F)(2).
STANDARD OF REVIEW
In reviewing the Orders revoking Nantz’s probation, this Court
utilizes an abuse of discretion standard of review. Commonwealth v. Andrews, 448
S.W.3d 773, 780 (Ky. 2014) (citing Commonwealth v Lopez, 292 S.W.3d 878 (Ky.
2009)). An abuse of discretion occurs where “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). As applied in the
context of probation revocation, “we will not hold a trial court to have abused its
discretion unless its decision cannot be located within the range of permissible
decisions allowed by a correct application of the facts to the law.” McClure v.
Commonwealth, 457 S.W.3d 728, 730 (Ky. App. 2015) (citing Miller v. Eldridge,
146 S.W.3d 909, 915 n.11 (Ky. 2004)).
ANALYSIS
KRS 439.3106, titled “Sanctions to which supervised individuals are
subject[,]” enumerates the criteria Trial Courts must consider when evaluating the
aptness of probation revocation. In pertinent part, KRS 439.3106 provides as
follows:
(1) Supervised individuals shall be subject to:
-12- (a) Violation 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; or
(b) Sanctions other than revocation and incarceration as appropriate to the severity of the violation behavior, the risk of future criminal behavior by the offender, and 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)(a)-(b) (emphasis added).
The General Assembly’s use of the conjunction “and” in subsection
(1)(a) denotes the proscription against revocation of an individual’s supervised
probation and the imposition of incarceration absent the establishment of two
grounds; to wit, (1) the supervised individual’s incompliant behavior demonstrates
that the individual is a significant risk to prior victims or the community, and (2)
the individual cannot be managed within the community. See, e.g., Andrews, 448
S.W.3d at 780 (“We conclude that KRS 439.3106(1) requires trial courts to
consider whether a probationer’s failure to abide by a condition of supervision
constitutes a significant risk to prior victims or the community at large, and
whether the probationer cannot be managed in the community before probation
may be revoked.”).
-13- Correspondingly, the conjunction “or” preceding subsection (1)(b)
conveys the Trial Judge’s discretion to impose sanctions other than incarceration,
depending on the violation and circumstances. See, e.g., McClure, 457 S.W.3d at
732 (“[T]he General Assembly intended the task of considering and making
findings regarding the two factors of KRS 439.3106(1) to serve as the analytical
precursor to a trial court’s ultimate decision[] whether revocation or a lesser
sanction is appropriate.”). Thus, once a Trial Court determines that a supervised
individual violated the terms of his probation, “there are two possible outcomes:
revocation and possible incarceration, KRS 439.3106(1), or the imposition of
sanctions ‘other than revocation,’ KRS 439.3106(2).” Andrews, 448 S.W.3d at 777
(emphasis added).
Here, Nantz does not contest that he violated the terms of his
probation by absconding from supervision and failing to complete the treatment
program. These two conditions were the mainstay of his probation and avoidance
of prison at the outset of his plea agreement. Nantz also recognizes that the Orders
on appeal contain the two statutorily required findings. Nantz, however, argues
that the Trial Court committed several errors by revoking him. First, Nantz argues
that the Trial Court failed to provide a reviewable analysis supporting its findings
pursuant to KRS 439.3106(1). Second, Nantz contends that the Trial Court’s
inability to articulate its reasoning is due to insufficient evidence supporting said
-14- findings. Finally, Nantz alleges reversible error in the Trial Court’s refusal to
impose lesser sanctions other than revocation and incarceration. We address each
argument in turn.
I. Sufficiency of the Trial Court’s Analysis
Nantz’s first allegation of error concerns the adequacy of the Trial
Court’s analysis supporting its findings under KRS 439.3106(1)(a). Nantz
maintains that a Trial Court must provide a reviewable analysis of the requisite
statutory findings instead of general conclusory reasons. Nantz cites
Commonwealth v. Alleman, 306 S.W.3d 484, 487 (Ky. 2010), for this proposition.
However, Alleman not only preceded the General Assembly’s passage of KRS
439.3106, but also supports affirmance of the Orders sub judice. In Alleman, our
Supreme Court considered whether the Trial Court’s oral ruling revoking probation
passed constitutional muster. At the time, the criteria enumerated in KRS
439.3106 was not at play. Regardless, the Kentucky Supreme Court held that “a
recorded oral recitation by the trial court of findings and reasons for revocation, if
otherwise sufficient, satisfies applicable due process requirements.” 306 S.W.3d at
486. The Supreme Court determined that the Trial Court’s reasons for revocation,
which were purely based on the probated individual’s failure to report upon release
from custody, were sufficient to support the Trial Court’s oral findings. Id. at 485.
Therefore, we reject Nantz’s argument that Alleman mandates reversal.
-15- Furthermore, since the General Assembly’s enactment of KRS
439.3106 in 2011, the Kentucky Supreme Court has expressly dispensed with the
notion that a Trial Court must convey its reasoning in support of the statutorily
required findings under subsection (1)(a). Andrews, 448 S.W.3d at 777. Indeed,
the Supreme Court explained that the statutorily mandated findings must be stated
in the revocation order, but the grounds supporting those findings may only lead to
reversal if those findings lack evidentiary support. Id. at 779.
Notwithstanding Andrews, supra, Nantz argues that this Court, in
Helms v. Commonwealth, 475 S.W.3d 637, 645 (Ky. App. 2015), held that
perfunctory recitation of the required statutory findings is insufficient. We do not
accept Nantz’s representation of Helms, which involved a unique factual pattern
concerning revocation of an offender’s pretrial diversion based on the diversion
agreement’s zero-tolerance provision. Id. at 639. In Helms, the Trial Court’s
revocation order stated that the offender was given one last opportunity to change
his behavior pursuant to the diversion agreement. Id. at 640. The subject order
also included the requisite findings pursuant to KRS 439.3106(1)(a). Id. at 640-41.
On appeal, this Court held that despite the Trial Court’s perfunctory recital of the
statutory criteria, it clearly relied solely on the zero-tolerance provision. Id. at 644.
Thus, the Court’s analysis continued with an evaluation of the evidence supporting
the Trial Court’s findings. Id. at 645. Ultimately, we held that a Trial Court’s
-16- revocation of diversion from a first-time offender due to a single positive drug test
was insufficient to satisfy KRS 439.3106(1)(a). Id.
This Court has since clarified our holding in Helms. See, e.g., New v.
Commonwealth, 598 S.W.3d 88, 90 (Ky. App. 2019) (stating that “[a] trial court is
not required to provide explanations for those [KRS 439.3106(1)(a)] findings;
instead, it must only make the findings, which must be supported by the evidence
of record”) (citing McClure, 457 S.W.3d at 733). To dispose of Helms’
burgeoning and “misconstrued” holding, this Court “emphatically reiterate[d]
that Helms does not mean that a court must provide detailed explanations for the
findings required by KRS 439.3106.” Kendrick v. Commonwealth, 664 S.W.3d
731, 735 (Ky. App. 2023). Based on this precedential authority, we may affirm a
Trial Court’s revocation order so long as the Trial Court makes the mandatory
statutory findings, even in a cursory manner, and those findings are supported by a
preponderance of record evidence on appeal.
In the case before us, the Trial Court’s reasoning was not fleeting;
rather, it provided an analysis of the evidence supporting revocation. Most
importantly, and as it relates to Nantz’s specific argument, the Trial Court
explicitly found that the evidence demonstrated that Nantz’s failure to abide by the
conditions of supervision constituted a significant risk to prior victims or the
community at large, and he cannot be managed in the community. Even assuming,
-17- arguendo, that the Trial Court’s findings were simply parroting the language of the
statute, those words satisfy the requirement under the law of this Commonwealth
so long as the evidence supports those findings. The Trial Court is under no
obligation to elaborate as to the reasoning behind its conclusion that Nantz’s
actions made him a significant risk to the community at large and cannot be
appropriately managed in the community. McClure, 457 S.W.3d at 734 (holding
that once the two statutory findings are made, “no further explanation” is required).
Trial Courts are busy places; short, clear orders are a necessary part of efficient
docket management. Unlike Courts of Appeal, Trial Judges do not have the luxury
of time to draft lengthy dissertations supporting all of their decisions.
Under the facts of this case, Nantz was not clearly entitled to
probation at the outset, given the severity and numerosity of his crimes. But the
Trial Judge and the prosecutor showed him mercy and gave him yet another chance
in his life to be a productive citizen. Nantz returned that gift in very short order.
He abandoned treatment, absconded probation, fled from law enforcement to
another state, and admittedly continued using narcotics and breaking the law.
Nantz recounted the hardships in his life, but he did not maintain that he was law-
abiding, nor could he, given the uncontradicted evidence to the contrary. Nantz
provided no proof of employment. In fact, we still do not know what he was doing
during his period of desertion, other than committing more crimes. Nantz never
-18- made a meaningful attempt to comply with probation. Instead, it could easily be
said that he made a mockery of it. These substantial reasons for refusing to return
Nantz to what would likely be another futile, short period of non-compliance, if not
lawlessness, on probation are all plainly evident and do not need further
elucidation in the form of a complex, lengthy order from a Trial Judge.
II. Sufficiency of the Evidence
Having determined the Trial Court provided the mandatory findings in
the Orders, we turn to the sufficiency of the evidence supporting those findings.
Nantz suggests that there is no evidence to support the Trial Court’s conclusions
that he is a significant risk to prior victims or the community at large, or that he
cannot be managed in the community.
As detailed above, Nantz admitted to the following during the
evidentiary hearing: (1) he departed the Court-mandated treatment program early
without permission; (2) he failed to contact Probation and Parole at any time
following his departure from the treatment program; (3) he left the jurisdiction
without permission; and (4) he used unlawful narcotics more than once. Those
facts alone provided the Trial Court with sufficient evidence to support revocation
and incarceration under KRS 439.3106(1)(a). If one is not inclined to be
supervised, there is no point in continuing to offer it. Yet, in addition to Nantz’s
admissions, the Trial Court also received testimony that Nantz evaded KSP after
-19- departing the treatment program. In conjunction with this evidentiary hearing
testimony, the Trial Court took the matter under advisement to review Nantz’s
lengthy criminal history in detail.
We pointedly note that Nantz’s criminal history lends credence to
Creech’s account of the August 2024 incident, thereby highlighting the Trial
Court’s discretion when considering the statutory criteria. Specifically, Nantz
incurred multiple convictions for fleeing and evading law enforcement. In fact, the
record before this Court includes an arrest warrant with a similar factual narrative
to Creech’s description of the August 2024 incident. Specifically, in July of 2020,
“KSP ordered [Nantz] to stop and [Nantz] ran on foot into the creek to avoid being
arrested.” ROA, p. 117. Another factual similarity is found within the police
report filed in case number 19-CR-00065, wherein the officer stated that Nantz was
riding a similar all-terrain vehicle with his co-defendants when a shooting ensued.
Nantz would like to parse his lengthy criminal record and separate his
years-long series of intentional lawlessness into single units of purported
misfortune and mistakes in an attempt to discount their persistence and
seriousness. In reality, his pattern of criminality and his continued refusal to
account for it and abide by the law is quite concerning. Despite his statements to
the contrary, Nantz has been provided with numerous opportunities to comply with
even minimal requirements and simple probationary terms. The very reason for
-20- probating Nantz instead of sending him to prison in the first place for his crime
spree was that he would benefit from treatment. He then refused to comply with
said treatment, declined to cooperate, failed to report, and continued using drugs
and committing crimes. Courts of law must neither ignore nor countenance such
illicit behavior. When someone has amply demonstrated his abject failure to
comply with supervised probation, Courts are under no obligation to return that
person to the community.
Indeed, certain violations of probation, such as Nantz’s, including
absconding from supervision, fleeing the Commonwealth, and continued narcotics
use, sufficiently evidence the required statutory criteria. For instance, in Andrews,
supra, our Supreme Court upheld revocation where the violation consisted of a
single failed drug test that the probated individual deceitfully blamed on diet pills.
448 S.W.3d at 780. The Trial Court considered the probated individual’s violation,
criminal history, and refusal to acknowledge his need for rehabilitation. Id.
Likewise, in McClure, this Court upheld revocation where the probated individual
used prohibited substances and attempted to alter the results of a drug screen. 457
S.W.3d at 733. This Court held that “a person who would go to such lengths to
continue using a substance he was forbidden to use under penalty of five years in
prison posed a significant risk to, and was unmanageable within, the community in
which he lived.” Id.
-21- We also mention Compise v. Commonwealth, 597 S.W.3d 175, 178
(Ky. App. 2020), a case in which the offender violated the terms of her supervision
by refusing to provide her DNA and urine samples, ignored the Trial Court’s order
to pay restitution, and failed to report to Probation and Parole on two occasions.
Id. at 182. This Court upheld the revocation, holding that “a defendant who will
not cooperate with the conditions of her supervision may indeed constitute a
significant risk to the community at large and be unmanageable in the community.”
Id. Therefore, in accordance with applicable precedent, Nantz’s continuing pattern
of illegal drug use, failure to complete mandatory, inpatient substance-abuse
treatment, absconding from supervision, and evading law enforcement, all support
the Trial Court’s findings that he poses a risk to the community at large and cannot
be managed within the community. See, e.g., New, 598 S.W.3d at 90-91 (holding
that an offender’s continued usage of drugs and submission of false paperwork to a
drug court satisfied the statutory factors); cf. Helms, 475 S.W.3d at 645 (finding an
abuse of discretion where there was no evidence the offender would not benefit
from drug treatment or that he would not cooperate in such treatment).
We recognize that Nantz entered the treatment program, as required
and as he agreed to do, and apparently abided probation for several months.
Completing his treatment program would have been commendable, and even some
progress is appreciated. This Court acknowledges that Nantz has undergone
-22- stressful life circumstances, and his lifestyle contributed to his lapses in judgement.
His circumstances were less than ideal, but so were his own choices. His struggle
with substance abuse is considerable, ongoing, and potentially will endure for the
rest of his life. We surmise that the Commonwealth offered probation at the
outset, and the Trial Court accepted it, because Nantz needed help, and he was not
taking care of himself on his own. And again, the prosecution continued to be
willing to permit Nantz to continue probation and return to the treatment program
despite his significant failures and repeated crimes because of Nantz’s hardships
and attempts. Nonetheless, it is the Trial Court which is vested with discretion in
this matter – not Nantz himself or the prosecution. And we cannot overturn that
Court’s decisions at will, absent the Trial Court’s abuse of such discretion. The
Trial Court is in the best position to observe the witnesses and weigh the evidence.
McClure, 457 S.W.3d at 734 (reasoning that this Court’s “proper role is merely to
evaluate the sufficiency of the evidence . . . . [T]o do[] otherwise would be to
invade the province of fact finding best occupied by our trial courts”).
In sum, the Orders recited the necessary statutory language that Nantz
posed a significant risk and is unable to be managed in the community. A review
of the evidence supports the Trial Court findings based on authoritative precedent
involving analogous facts. Therefore, the Trial Court’s revocation of Nantz’s
probation was not arbitrary, unreasonable, or against sound legal principles. In
-23- echoing our Supreme Court’s conclusion in Andrews, “although [Nantz’s] situation
was not clear-cut and another judge may have opted for a lesser sanction, the trial
court’s decision to revoke [Nantz’s] probation was neither arbitrary nor
unreasonable.” 448 S.W.3d at 781.
Before moving on to Nantz’s final argument, it is incumbent upon this
Court to comment on Nantz’s allegations that the Trial Court’s decision to revoke
his probation was based on the Commonwealth’s comment that Nantz provided
favorable testimony in the Polly case. Nantz’s argument is based purely on
conjecture. Nantz surmises and then opines without evidence that because the
Commonwealth agreed to permit him to return to the treatment program, the only
logical conclusion is the Trial Court revoked Nantz’s probation due to his
favorable testimony in the Polly case.
First, Nantz has not shown any reason for the Trial Court – a Court of
law – to frown upon Nantz’s desire to provide evidence in a different criminal case
involving murder. Indeed, Nantz is complaining, somewhat ironically, that the
Trial Court is taking his own misconduct too seriously. Second, on its face, the
Trial Court’s inquiry seems quite reasonable. The prosecution was offering yet
more leniency without sanction for Nantz’s continued criminality and failure to
comply meaningfully with his probation in any significant manner. Other,
similarly-situated defendants might not receive such repeated mercy, and the Trial
-24- Judge was right to have questions about it. And questions were all that occurred
here – no pronouncements or rulings. Third, the Commonwealth expressly denied
giving Nantz a free pass solely by virtue of that testimony in the other case. The
record on appeal demonstrates that the Trial Court conducted a brief bench
conference upon learning of Nantz’s testimony in the Polly case. When the Trial
Court resumed the evidentiary hearing on the record, the Commonwealth
confirmed that there was no quid pro quo for Nantz’s testimony and continued with
hearing Creech’s testimony. Other than this brief exchange, we can find no
support for Nantz’s supposition that the Trial Court revoked his probation based
solely on his testimony in the Polly case. On the contrary, the Orders describe the
facts surrounding Nantz’s probation violations and make no mention of the Polly
case. It is very significant and much more important, as detailed throughout this
Opinion, that there are ample grounds supporting the Trial Court’s revocation of
Nantz’s probation because of Nantz’s continued refusal to comply with the law,
supervision, reporting, or drug treatment.
III. Imposition of Lesser Sanctions
Finally, we address Nantz’s argument that the Trial Court should have
imposed lesser sanctions pursuant to KRS 439.3106(1)(b). We are certainly
mindful of the Commonwealth’s statements that Nantz is in need of substance
abuse treatment. Yet, Nantz does not provide this Court with any precedential
-25- authority mandating a Trial Court to impose lesser sanctions upon a finding that
revocation is statutorily permissible. Nantz’s inability to provide such authority is
significant as we are bound by an abuse of discretion standard of review.
Again, we cite our decision in McClure, supra: “[T]he General
Assembly intended the task of considering and making findings regarding the two
factors of KRS 439.3106(1) to serve as the analytical precursor to a trial court’s
ultimate decision: whether revocation or a lesser sanction is appropriate.” 457
S.W.3d at 732 (citing Andrews, 448 S.W.3d 773). Said differently, this Court must
assume that the Trial Court considered lesser sanctions when considering the
existence of the two statutory factors promulgated in subsection (1)(a).
Undeniably, “[n]othing in [KRS 439.3106] or in the Supreme Court’s
interpretation of it requires the trial court to impose lesser sanctions prior to
revoking probation.” 457 S.W.3d at 732 (emphasis in original). McClure, being
binding precedent, permitted the Trial Court to revoke Nantz’s probation and
impose imprisonment for the agreed upon term pursuant to KRS 439.3106(1)(a).
See also Hall v. Commonwealth, 566 S.W.3d 578, 581 (Ky. App. 2018) (finding
that KRS 439.3106 does not require a Trial Court to “consider revocation only as a
last resort”).
Finally, we must note that while Nantz minimizes his crimes, we do
not. His criminal record, the numerous and serious charges that are the subject of
-26- the instant case, his non-compliance with the law and the terms of his supervision
while on probation, and his wrongdoing are significant and have permeated long-
stretches of his life. He pleaded guilty to 25 crimes in the eight cases in this appeal
alone, many of which involved clear danger to himself and others, including
wanton endangerment, fleeing and evading, narcotics use, driving under the
influence of an intoxicant, leaving the scene of an accident, and being a persistent
felony offender. His repeated charges for receiving stolen property and car theft
evince predatory behavior towards the community. Nantz is not merely hurting
himself and frustrating and antagonizing law enforcement; he is endangering
everyone around him. The Trial Court in no way abused its discretion in finding
Nantz to be a significant risk who cannot be managed in the community any
longer. Nantz was afforded many chances; he abused and forfeited them. Nantz
has proven himself to be unable or unwilling to comply with the law and his
probation. He is responsible for his current incarceration, and revocation was
neither unreasonable nor arbitrary.
CONCLUSION
The Trial Court made the requisite findings pursuant to KRS
439.3106, and those findings are supported by the record evidence on appeal. For
these reasons, we affirm the Harlan Circuit Court’s Orders Revoking Probation.
-27- ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Shannon Dupree Russell Coleman Assistant Public Advocate Attorney General of Kentucky Frankfort, Kentucky Jacob M. Abrahamson Assistant Solicitor General Frankfort, Kentucky
-28-