RENDERED: NOVEMBER 9, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-0055-MR
JULIE MAZE APPELLANT
APPEAL FROM LAWRENCE CIRCUIT COURT v. HONORABLE JOHN DAVID PRESTON, JUDGE ACTION NO. 20-CR-00103
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND JONES, JUDGES.
ACREE, JUDGE: Appellant, Julie Maze, appeals the Lawrence Circuit Court’s
November 16, 2021 Order revoking her probation. We affirm.
On October 22, 2020, Appellant pleaded guilty to first-degree
possession of a controlled substance and possession of drug paraphernalia. The
circuit court sentenced her to three years of incarceration but probated this
sentence. As a condition of her probation, Appellant had to complete treatment for substance abuse and pay supervision and drug testing fees. Appellant failed to
comply with these conditions.
After beginning inpatient care for substance abuse, Appellant left her
program after attending it for approximately one month and, on October 15, 2021,
Appellant tested positive for methamphetamine. Preliminary indications were that
her urine sample was altered by a chemical added to mask illegal substances.
Appellant’s probation officer, Amber Coss, filed a violation-of-supervision report,
and the Commonwealth sought to revoke Appellant’s probation.
The Lawrence Circuit Court held a probation revocation hearing on
November 10, 2021. During the hearing, the court only heard testimony from
Coss, and heard the above stated facts and violations. Additionally, when asked if
it would be impossible to supervise Appellant due to her refusal to report and
attend treatment, Coss stated: “It makes it very difficult, yes.” The circuit court
entered its order revoking probation, stating:
The probation officer testified that in her opinion the [Appellant] could not be properly supervised in the community as a whole, and also testified that [Appellant’s] continued drug abuse issues caused her to be a danger to herself or the community as a whole.
The Court agrees with the assessment of the probation officer. [Appellant] has been previously convicted of substance abuse and has been offered the option to address that abuse, but has failed to do so. The Court concludes that [Appellant] is a danger to herself because of that drug use[.] . . . [H]er consistent failure to comply with the
-2- directives of the probation office make it clear to the Court that she cannot be properly supervised in the community as a whole.
(Record (R.) at 65.) This appeal follows.
Appellant argues the circuit court failed to comply with the
requirements for revoking probation pursuant to KRS1 439.3106 in two instances.
First, the Commonwealth failed to present evidence showing Appellant posed a
significant risk to the community and could not be managed in the community.
Second, the circuit court did not consider alternatives to incarceration. We will
address each in turn.
When reviewing a circuit court’s decision to revoke an individual’s
probation, we review for abuse of discretion. Commonwealth v. Andrews, 448
S.W.3d 773, 780 (Ky. 2014) (citing Commonwealth v. Lopez, 292 S.W.3d 878, 881
(Ky. 2009)). Accordingly, this Court “will disturb a ruling only upon finding that
‘the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by
sound legal principles.’” Id. (quoting Commonwealth v. English, 993 S.W.2d 941,
945 (Ky. 1999)).
It is “[w]ithout question, the power to revoke probation is vested in
the trial courts and in the trial courts alone.” Id. at 777. Nevertheless, prior to
1 Kentucky Revised Statutes.
-3- revoking an individual’s probation, a circuit court must consider KRS 439.3106.
Id. at 776. Pursuant to KRS 439.3106:
(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 crime- free in the community.
KRS 439.3106(1). The Kentucky Supreme Court said: “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.” Andrews, 448 S.W.3d at 780.
When making these findings, “perfunctorily reciting the statutory
language in KRS 439.3106 is not enough.” Helms v. Commonwealth, 475 S.W.3d
637, 645 (Ky. App. 2015). 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. When we
-4- undertake this analysis, we “look to both the written and oral findings in
conjunction with one another and not separately in a vacuum.” Commonwealth v.
Gilmore, 587 S.W.3d 627, 630 (Ky. 2019).
Here, the circuit court properly measured whether Appellant posed a
risk to the community, whether she could be managed in the community, and
whether alternatives to incarceration were appropriate – all in consideration of
KRS 439.3106. The record demonstrates facts to support each conclusion.
We find evidence of record that Appellant failed to comply with her
probation conditions. She failed to complete substance abuse treatment and she
failed to maintain contact as required to satisfy her conditions of probation. After
leaving treatment, there is no indication Appellant returned; instead, she thereafter
tested positive for methamphetamine. Additionally, the court heard evidence
concerning Appellant tampering with her urine sample.2 Further, Coss testified it
would be “very difficult, yes,” in response to questions concerning whether she
could be managed in the community as a probationer. The record is replete with
evidence concerning Appellant’s probation violations, and given the nature of
those violations, it was not an abuse of discretion for the circuit court to conclude
Appellant would be impossible to manage in the community.
2 In the record, it is indicated that lab tests had not yet confirmed whether a chemical had, in fact, been added to Appellant’s urine sample.
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RENDERED: NOVEMBER 9, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-0055-MR
JULIE MAZE APPELLANT
APPEAL FROM LAWRENCE CIRCUIT COURT v. HONORABLE JOHN DAVID PRESTON, JUDGE ACTION NO. 20-CR-00103
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND JONES, JUDGES.
ACREE, JUDGE: Appellant, Julie Maze, appeals the Lawrence Circuit Court’s
November 16, 2021 Order revoking her probation. We affirm.
On October 22, 2020, Appellant pleaded guilty to first-degree
possession of a controlled substance and possession of drug paraphernalia. The
circuit court sentenced her to three years of incarceration but probated this
sentence. As a condition of her probation, Appellant had to complete treatment for substance abuse and pay supervision and drug testing fees. Appellant failed to
comply with these conditions.
After beginning inpatient care for substance abuse, Appellant left her
program after attending it for approximately one month and, on October 15, 2021,
Appellant tested positive for methamphetamine. Preliminary indications were that
her urine sample was altered by a chemical added to mask illegal substances.
Appellant’s probation officer, Amber Coss, filed a violation-of-supervision report,
and the Commonwealth sought to revoke Appellant’s probation.
The Lawrence Circuit Court held a probation revocation hearing on
November 10, 2021. During the hearing, the court only heard testimony from
Coss, and heard the above stated facts and violations. Additionally, when asked if
it would be impossible to supervise Appellant due to her refusal to report and
attend treatment, Coss stated: “It makes it very difficult, yes.” The circuit court
entered its order revoking probation, stating:
The probation officer testified that in her opinion the [Appellant] could not be properly supervised in the community as a whole, and also testified that [Appellant’s] continued drug abuse issues caused her to be a danger to herself or the community as a whole.
The Court agrees with the assessment of the probation officer. [Appellant] has been previously convicted of substance abuse and has been offered the option to address that abuse, but has failed to do so. The Court concludes that [Appellant] is a danger to herself because of that drug use[.] . . . [H]er consistent failure to comply with the
-2- directives of the probation office make it clear to the Court that she cannot be properly supervised in the community as a whole.
(Record (R.) at 65.) This appeal follows.
Appellant argues the circuit court failed to comply with the
requirements for revoking probation pursuant to KRS1 439.3106 in two instances.
First, the Commonwealth failed to present evidence showing Appellant posed a
significant risk to the community and could not be managed in the community.
Second, the circuit court did not consider alternatives to incarceration. We will
address each in turn.
When reviewing a circuit court’s decision to revoke an individual’s
probation, we review for abuse of discretion. Commonwealth v. Andrews, 448
S.W.3d 773, 780 (Ky. 2014) (citing Commonwealth v. Lopez, 292 S.W.3d 878, 881
(Ky. 2009)). Accordingly, this Court “will disturb a ruling only upon finding that
‘the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by
sound legal principles.’” Id. (quoting Commonwealth v. English, 993 S.W.2d 941,
945 (Ky. 1999)).
It is “[w]ithout question, the power to revoke probation is vested in
the trial courts and in the trial courts alone.” Id. at 777. Nevertheless, prior to
1 Kentucky Revised Statutes.
-3- revoking an individual’s probation, a circuit court must consider KRS 439.3106.
Id. at 776. Pursuant to KRS 439.3106:
(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 crime- free in the community.
KRS 439.3106(1). The Kentucky Supreme Court said: “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.” Andrews, 448 S.W.3d at 780.
When making these findings, “perfunctorily reciting the statutory
language in KRS 439.3106 is not enough.” Helms v. Commonwealth, 475 S.W.3d
637, 645 (Ky. App. 2015). 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. When we
-4- undertake this analysis, we “look to both the written and oral findings in
conjunction with one another and not separately in a vacuum.” Commonwealth v.
Gilmore, 587 S.W.3d 627, 630 (Ky. 2019).
Here, the circuit court properly measured whether Appellant posed a
risk to the community, whether she could be managed in the community, and
whether alternatives to incarceration were appropriate – all in consideration of
KRS 439.3106. The record demonstrates facts to support each conclusion.
We find evidence of record that Appellant failed to comply with her
probation conditions. She failed to complete substance abuse treatment and she
failed to maintain contact as required to satisfy her conditions of probation. After
leaving treatment, there is no indication Appellant returned; instead, she thereafter
tested positive for methamphetamine. Additionally, the court heard evidence
concerning Appellant tampering with her urine sample.2 Further, Coss testified it
would be “very difficult, yes,” in response to questions concerning whether she
could be managed in the community as a probationer. The record is replete with
evidence concerning Appellant’s probation violations, and given the nature of
those violations, it was not an abuse of discretion for the circuit court to conclude
Appellant would be impossible to manage in the community.
2 In the record, it is indicated that lab tests had not yet confirmed whether a chemical had, in fact, been added to Appellant’s urine sample. The results of that test are not in the record.
-5- Although the circuit court’s order revoking probation is brief, it is
supported by a record that goes beyond a mere perfunctory recitation of KRS
439.3106’s requirements. In McClure v. Commonwealth, a circuit court revoked a
probationer’s parole because he attempted to alter his drug test after failing
repeated drug tests. McClure v. Commonwealth, 457 S.W.3d 728, 730 (Ky. App.
2015). In McClure, the court’s findings consisted of the following oral statement:
Mr. McClure, the court is going to sentence you to five years. The main thing that concerns the court more than anything is attempting to alter a drug screen which means apparently that if you went to those levels, that you do have an addiction and considering the large number of days you have, you will probably be eligible for parole pretty soon. And you can make a motion for shock at a later date . . . but I don't know, that is pretty serious, especially considering that he was probated.
Id. We determined this statement met the requirements of KRS 439.3106 because
the court contemplated “the gravity of McClure’s actions and the danger posed by
his obvious addiction.” Id. at 733. As such, the question is not whether “how
attempting to alter a drug screen posed a danger to society,” id., but rather
“whether a probationer’s failure to abide by a condition poses a significant risk to
prior victims or the community at large.” Id. (quoting Andrews, 448 S.W.3d at
776)). “Neither KRS 439.3106 nor Andrews require anything more than a finding
to this effect supported by the evidence of record.” Id.
-6- Here, the record reflects judicial contemplation of the gravity of
Appellant’s violations. The circuit court references Coss’s own testimonial
conclusions of the inability to supervise her in the community and incorporated
those conclusions in its reasoning. Beyond that, the court recognized Appellant’s
substance abuse and its severity. Given this, the court did not abuse its discretion
when it determined she would pose a risk to the community. The court did not
abuse its discretion when it agreed with Appellant’s probation officer that
Appellant would be impossible to manage in the community because of her
repeated failures to cooperate.
Moreover, the record demonstrates the circuit court properly
considered other alternatives to incarceration. Appellant requested alternatives be
considered by the court before imposing the three-year sentence on her and,
implicit in answering that request, the court contemplated other alternatives. The
circuit court concluded Appellant failed to take any meaningful steps to address
her drug abuse, despite the Commonwealth giving her multiple chances to do so.
KRS 439.3106 does not require a court to try every possible alternative to
incarceration on the road to probation revocation. It merely requires the court to
consider alternatives, and KRS 439.3106 vests the circuit court with the discretion
to utilize other alternatives where appropriate.
-7- We find no abuse of the circuit court’s discretion here. Because
Appellant failed to address her substance abuse, it was not error for the circuit
court to revoke Appellant’s probation.
For the aforementioned reasons, we affirm.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Roy A. Durham, II Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky
Jenny L. Sanders Assistant Attorney General Frankfort, Kentucky
-8-