RENDERED: AUGUST 21, 2026; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2025-CA-1038-MR
JONATHAN JONES APPELLANT
APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE KATHLEEN LAPE, JUDGE ACTION NO. 20-CR-00170
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
VACATING AND REMANDING
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BEFORE: THOMPSON, CHIEF JUDGE; CALDWELL AND CETRULO, JUDGES.
CETRULO, JUDGE: Jonathan Jones (“Jones”) appeals a July 2025 Kenton Circuit Court order revoking his probation. After review, we find the trial court’s findings were not sufficiently supported by evidence in the record, and it is unclear if the court considered the statutory requirements prior to revocation. Thus, we vacate the revocation order and remand for additional findings.
BACKGROUND
In December 2019, police officers responded to a call about a nonresponsive individual; found Jones in a bedroom in need of medical assistance; and located 10 grams of fentanyl in his shoe. While Jones was originally charged with trafficking in a controlled substance, the charge was reduced to a lesser offense. In April 2020, Jones entered a guilty plea to prohibited acts relating to a controlled substance and to being a second-degree persistent felony offender, and the matter was set for sentencing in June 2020.
At the June 2020 sentencing hearing, the trial court informed the parties that it had not received the pre-sentence investigation report (“PSI”). Jones stated he had completed the PSI and mailed it as instructed. The court stated, “Sometimes the mail is a little wacky around here.” As this hearing occurred during the global pandemic, defense counsel stated she was unaware if the probation office was “open fully” but that Jones had engaged with the Life Learning Center to initiate a case plan. Defense counsel then requested a continuance to allow Jones time to complete a second PSI. The court granted the continuance, stating that the PSI was lost and likely would be found “five years from now.”
In August 2020, the court conducted Jones’s final sentencing hearing.
At that hearing, the trial court noted Jones had three prior felonies but probated his
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sentence for five years. The court also included conditions Jones would be required to submit to, including obeying all rules and regulations of the probation office; being subject to a system of graduated sanctions imposed by probation and parole for any violations; committing no new criminal acts; participating in psychological counseling; being evaluated for drug treatment and submitting to random testing for drugs; paying supervision fees; reimbursing Public Advocacy for $750.00 for attorney’s fees; and begin paying for all these fees by October 1, 2020. Due to his out-of-state residence, Jones’s probation supervision was transferred to Ohio.
The record does not indicate any probation violations for four years.
In August 2024, the trial court received a violation of supervision report stating that the Hamilton County Sheriff had arrested Jones on July 30, 2024 for the misdemeanor charge of sexual imposition. The Ohio probation officer recommended revocation. This misdemeanor charge was later dismissed.
In February 2025, the court received another violation of supervision report that Jones had not maintained contact with his Ohio probation officer. The report stated the officer had attempted to contact Jones on January 1, 2, 3, and 31st at his home address and on his cell phone. A door tag was left at the residence with instructions to contact the probation officer upon receipt, but there was no response. In February 2025, the Ohio officer eventually made contact with an
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adult sibling, but that person stated he had not heard from Jones. Based on this probation violation report, the trial court issued an arrest warrant on February 17, 2025. Jones was arrested in June 2025. Following his arrest, the court appointed counsel and scheduled a probation revocation hearing for July 8, 2025.
At the July revocation hearing, Jones stipulated to the two violations alleged in supervision reports, i.e., receiving a new misdemeanor arrest and absconding. The court read the two violation reports into the record and then heard brief arguments from defense counsel and the Commonwealth. The court took no sworn testimony, and the hearing lasted less than six minutes.
Defense counsel acknowledged Jones had been arrested on a misdemeanor charge in Ohio, but argued that the charge had been dismissed. As for the absconding violation, defense counsel asserted that Jones was unaware of the door tags, that there were people living in his apartment at that time who may have tampered with the tags and/or his mail, and that, at some point, Jones’s wallet and cell phone were stolen. Defense counsel argued Jones had been going to his court appearances in Hamilton County, Ohio, and stayed active with mental health court and therapy. Defense counsel stated Jones had been successful on probation supervision from August 2020 through January 2025 and requested probation be continued.
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The Commonwealth argued briefly and confirmed the Ohio misdemeanor charge had been dismissed, but stated that the charge was “concerning” as it was for sexual imposition. The Commonwealth asserted that revocation was proper because Jones should have known better than to lose contact with his probation officer.
After hearing arguments as to disposition, the trial court revoked Jones’s probation and imposed the probated sentence of eight years of incarceration. The court orally based this finding on the seriousness of his original charge, his three prior felonies, the “issues” he had with completing his PSI, and absconding. Shortly thereafter, the trial court entered a written order revoking Jones’s probation (“Revocation Order”). The Revocation Order noted Jones’s stipulations to the violations of receiving a new misdemeanor arrest and absconding. The order stated Jones’s “actions constitute a significant risk to prior victims of the supervised individual or the community at large, and Defendant cannot be appropriately managed in the community.” Jones appealed.
ANALYSIS
On appeal, Jones argues the trial court abused its discretion by revoking his probation as it failed – in both the oral and written findings – to give more than a cursory recitation to the statutory requirements. Jones asserts the court “has the standard boilerplate language about violations constituting a significant
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risk and an inability to manage in the community, yet lacks any analysis of how the violations demonstrate either factor.” Conversely, the Commonwealth argues that the “evidence in this case was more than sufficient” to support the conclusion that “Jones was a danger to himself and others and could not be appropriately managed in the community.” The Commonwealth, however, refers us to no evidence at all.
When analyzing a probation revocation, this Court must first determine “whether the trial court properly considered KRS[1] 439.3106(1) before revoking [Jones’s] probation.” Commonwealth v. Gilmore, 587 S.W.3d 627, 629 (Ky. 2019) (citing Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014)). If the trial court considered the statute, we then review whether its decision to revoke probation was an abuse of discretion. Id. (citing Andrews, 448 S.W.3d at 780). “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) (citations omitted).
KRS 439.3106 was enacted in 2011 through the Public Safety and Offender Accountability Act, commonly referred to as House Bill 463 (“HB 463”). 2011 Ky. Acts ch. 4. Through HB 463, “the legislature adopted a sentencing policy intended to ‘maintain public safety and hold offenders accountable while reducing recidivism and criminal behavior and improving outcomes for those
1 Kentucky Revised Statute.
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offenders who are sentenced.’” Andrews, 448 S.W.3d at 776 (quoting KRS 532.007(1)).
KRS 439.3106 provides:
(1) Supervised individuals shall be subject to:
(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 crimefree in the community.
The discretion afforded the trial court when deciding whether to revoke probation must be exercised “consistent with [these] statutory criteria.” New v. Commonwealth, 598 S.W.3d 88, 90 (Ky. App. 2019) (quoting Andrews, 448 S.W.3d at 780). “Specifically, before revoking probation, a trial court must make two findings under [KRS] 439.3106(1): (1) whether the alleged probation violation ‘constitutes a significant risk to prior victims of the supervised individual or the community at large’ and (2) whether the defendant ‘cannot be appropriately managed in the community[.]’” Id. (quoting KRS 439.3106(1)). Perfunctory recitation of the statutory language in KRS 439.3106 is “not enough.” Helms v.
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Commonwealth, 475 S.W.3d 637, 645 (Ky. App. 2015). Yet, the trial court need not give detailed explanations either. Kendrick v. Commonwealth, 664 S.W.3d 731, 734 (Ky. App. 2023) (citing New, 598 S.W.3d at 90). “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.’” Gilmore, 587 S.W.3d at 630 (quoting Helms, 475 S.W.3d at 645) (emphasis added).
Here, Jones stipulated to the violations: the (dismissed) misdemeanor arrest and absconding. Thus, we turn toward the statutory criteria and the evidence in the record to support the court’s conclusions.
At the revocation hearing, the trial court stated on the record that it was revoking Jones’s probation due to the seriousness of his original charge, his three prior felonies, the “issues” he had with completing his PSI, and the absconding. Noting only the violation stipulations, the subsequent Revocation Order stated Jones’s actions constituted a significant risk to victims and the community and that he could not be managed in the community. It is unclear from the limited record how Jones’s actions constituted a risk to the community or why he could not be managed in the community.
Jones’s original charge was based upon his own drug overdose.
However, the record does not contain any evidence that Jones failed a drug test or missed a drug test since his original arrest in December 2019.
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In revoking his probation, the trial court referenced Jones’s criminal history of three prior felonies, felonies that existed prior to his probated sentence in August 2020. True, a new conviction is not necessary in order to find a probation violation. Williams v. Commonwealth, 462 S.W.3d 407, 410 (Ky. App. 2015) (“[A] conviction is unnecessary to support revocation based upon new charges.”). Yet, the charge associated with Jones’s new misdemeanor arrest was dismissed, and except for that matter, there was no evidence in the record of any other criminal arrest after August 2020, more than four years.
At the revocation hearing, the trial court took umbrage with Jones for the PSI “issue” from 2020. The court stated, “You couldn’t get your PSI done.” However, the record appears to indicate he timely completed the PSI twice. During the June 2020 hearing, the court indicated through conversation with Jones and his defense counsel that it believed the PSI was “lost” by a recipient; the court in no way indicated it did not believe Jones when he stated he timely mailed the PSI. Additionally, the court received a second PSI in time to hold the August 2020 sentencing hearing. It is unclear how these “issues” in 2020 with the PSI demonstrated Jones was a significant risk to the community or was unable to be appropriately managed in the community.
There was no sworn testimony at this hearing. Jones, through counsel, stipulated to absconding, but it is unclear from the record why this
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incident created a significant risk to the community and/or meant he was unable to be supervised in the future. As stated by his defense counsel, Jones had complied with the mental health court and treatment in Ohio and attended his court dates, but again, there was no evidence presented. Based on the limited record here, Jones demonstrated for four years that he was able to be successfully supervised (before his lapse in early 2025), and the record does not indicate why he could not do so again.
A trial court is required to make findings pursuant to KRS 439.3106(1), and those findings must be “supported by the evidence of record.” McClure v. Commonwealth, 457 S.W.3d 728, 733 (Ky. App. 2015) (citing KRS 439.3106; Andrews, 448 S.W.3d at 776). By requiring the trial court to make such a determination, “the legislature furthers the objectives of the graduated sanctions schema to ensure that probationers are not being incarcerated for minor probation violations.” Andrews, 448 S.W.3d at 779 (citation omitted) (emphasis added). Here, the trial court included the statutory language – finding significant risk and an inability to be managed – but those findings were not supported by any evidence of record.
These statutorily required findings and evidentiary support exist for a reason: these findings “allow[ ] the trial court to conclude with some certainty that the imposition of some other accountability measure would be fruitless[.]”
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Gilmore, 587 S.W.3d at 630 (quoting Andrews, 448 S.W.3d at 779-80). “[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.” McClure, 457 S.W.3d at 732. Here, the trial court did not refer to, consider, or weigh lesser sanctions either orally at the July 2025 revocation hearing or within the Revocation Order. The trial court is not required to impose lesser sanctions, but the statutory findings of risk and manageability are intended to be tools in determining whether lesser sanctions are appropriate. Id. “Per Andrews, once the trial court has fully considered and found as to [the KRS 439.3106(1)] elements, its analysis should produce a conclusion concerning whether revocation or a lesser sanction is most appropriate, thus serving both the spirit of, and the intent behind, KRS 439.3106.” Id. at 734 (emphasis added). See also Burnett v. Commonwealth, 538 S.W.3d 322, 325 (Ky. App. 2019) (“On remand, the circuit court shall enter findings as to both elements of KRS 439.3106(1). Once the court has fully considered the matter and made findings as to both elements, its analysis should conclude by stating whether voiding the pretrial diversion or a lesser sanction is more appropriate.”).
In Walker v. Commonwealth, this Court vacated the circuit court’s order revoking the defendant’s probation and remanded for “full consideration of
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the statutory criteria and the entry of appropriate findings[.]” 588 S.W.3d 453, 459 (Ky. App. 2019) (citing Burnett, 538 S.W.3d at 325). The issue in Walker arose when the circuit court’s “only mention of the statutory criteria” was in a preprinted form order. Id. at 458. Following the arguments and testimony at the revocation hearing, “the circuit court did not make any specific oral findings related to the mandatory criteria in KRS 439.3106. Rather, the court focused on [defendant]’s dishonesty . . . and touched on his past violations.” Id. The form order tracked the statutory language and provided blank spaces and checkboxes for the court to manually complete. Id. at 459. Although the circuit court did in fact complete and check the appropriate boxes to indicate the defendant was a significant risk to prior victims and the community at large and could not be managed in the community, “[t]he court did not include any other findings, other than the conclusory statements on the preprinted forms, related to the criteria in KRS 439.3106(1).” Id. This Court determined that this practice was “not sufficient to meet the mandatory statutory findings necessary to revoke a defendant’s probation.” Id.
In the case before us, the trial court did not make specific oral findings regarding the statutory criteria, and the trial court’s written order, while not a preprinted form order, similarly tracks the wording of KRS 439.3106(1). The trial court recited limited statutory language, but those findings are not supported by the evidence of record. “A revocation unsupported by evidence of record would not be
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‘within the range of permissible decisions allowed by a correct application of the facts to the law.’” Kendrick, 664 S.W.3d at 735 (quoting McClure, 457 S.W.3d at 730). Therefore, the trial court’s revocation order was unsupported by the requisite findings and hence, constitutes an abuse of discretion.
To be clear, we are not making a determination as to whether Jones’s probation should or should not be revoked; that is not our role. See Andrews, 448 S.W.3d at 777 (citation omitted) (“Historically, our statutes have reflected the trial court’s broad discretion in overseeing a defendant’s probation, including any decision to revoke[.]”). We acknowledge that trial courts across the Commonwealth are tasked with the challenge of managing ever-increasing dockets and judicial workloads while still ensuring that fairness and justice prevail. We also note that the trial court in this case was presented with barely any evidence to consider and weigh in making its dispositional decision, and unfortunately, the appellate record and our review are likewise constrained.
Our Supreme Court interpreted KRS 439.3106(1) to “requir[e] trial courts in revocation proceedings to consider specifically the risks to others, appropriate management of the probationer in the community, and the feasibility of lesser sanctions[.]” Id. Accordingly, we hold that if a trial court chooses to revoke probation, it bases that decision on evidence within the record and its findings meet
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all statutory requirements and considerations. See Gilmore, 587 S.W.3d at 629 (citing Andrews, 448 S.W.3d at 780).
CONCLUSION
Accordingly, we must VACATE the Kenton Circuit Court order revoking Jones’s probation and REMAND for additional findings in compliance with this Opinion and in accordance with KRS 439.3106(1).
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Jennifer Wade Russell Coleman Frankfort, Kentucky Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General Frankfort, Kentucky