Justin Ray Kimberlin v. Commonwealth of Kentucky

Opinion

RENDERED: JANUARY 22, 2021; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2020-CA-0595-MR

JUSTIN KIMBERLIN APPELLANT

APPEAL FROM HENRY CIRCUIT COURT v. HONORABLE KAREN A. CONRAD, JUDGE ACTION NOS. 17-CR-00014 AND 17-CR-00090

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION REVERSING AND REMANDING

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BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.

LAMBERT, JUDGE: Justin Kimberlin appeals from the Henry Circuit Court’s

final judgment and sentence of imprisonment following the court’s order voiding

his pretrial diversion. Because the trial court failed to make findings required by

KRS1 439.3106, we reverse and remand with instructions.

1 Kentucky Revised Statutes. Kimberlin was facing two separate counts of possession of a

controlled substance (methamphetamine) when he negotiated a guilty plea with the

Commonwealth in January 2018. As part of his plea, he agreed to a sentence of

two consecutive three-year terms of imprisonment, which would be subject to

supervised diversion for two years. Several months later, the Commonwealth

moved to revoke Kimberlin’s diversion, alleging he had absconded from

supervision. The parties resolved the issue by agreeing Kimberlin could remain on

diversion by completing drug court.

Unfortunately, over the course of the following year, Kimberlin

repeatedly violated drug court rules, most often due to positive tests for kratom.2

The trial court responded by extending his supervision period for two years.

Finally, after Kimberlin was terminated from drug court, the trial court prepared to

void his diversion and sentence him pursuant to his plea agreement. In a hearing

held on March 12, 2020, Kimberlin’s defense counsel argued in favor of an

alternative sentencing plan, contending that Kimberlin could benefit from in-

patient treatment. Defense counsel also argued that Kimberlin could be treated in

the community and was not a risk to the community. The trial court focused on the

2 “Kratom” is a plant native to Southeast Asia, the leaves of which contain mind-altering compounds. Kratom DrugFacts, NAT’L INST. ON DRUG ABUSE, https://www.drugabuse.gov/publication/drugfacts/kratom (last visited Jan. 21, 2021). At the time of this writing, kratom is not a federally-banned substance. However, drug courts may forbid drug court participants from consuming it; see, e.g., Croley v. Commonwealth, No. 2014-CA- 1775-MR, 2015 WL 6437225 (Ky. App. Oct. 23, 2015).

-2- number of Kimberlin’s violations of drug court rules before finding that Kimberlin

had been given many opportunities to improve. The trial court then declared it was

not convinced by counsel’s arguments and indicated it would sentence Kimberlin.

In its order voiding diversion, the trial court only stated “terminated from drug

court,” without further reasoning or findings for its decision. The trial court

thereafter sentenced Kimberlin to a total of six years’ imprisonment. This appeal

followed.

A trial court’s decision to void pretrial diversion uses the same criteria

as a decision to revoke probation. Richardson v. Commonwealth, 494 S.W.3d 495,

498 (Ky. App. 2015). “A decision to revoke probation is reviewed for an abuse of

discretion.” Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014) (citing

Commonwealth v. Lopez, 292 S.W.3d 878 (Ky. 2009)). “Under our abuse of

discretion standard of review, we 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)).

A trial court traditionally has “broad discretion in overseeing a

defendant’s probation, including any decision to revoke[.]” Andrews, 448 S.W.3d

at 777. This traditional deference was somewhat qualified when, “[i]n 2011, the

Kentucky General Assembly enacted the Public Safety and Offender

-3- Accountability Act, commonly referred to as House Bill 463 (‘HB 463’).” Id. at

776 (internal quotation marks omitted). Included as part of this legislation, KRS

439.3106(1)(a) provides the following:

Supervised individuals shall be subject to . . . [v]iolation 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[.]

Our courts have consistently held that this statutory provision requires a trial court

“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.” Commonwealth v. Gilmore, 587 S.W.3d 627, 630 (Ky. 2019)

(quoting Andrews, 448 S.W.3d at 780). The trial court’s findings may be made

orally or in a written order. Id. Finally, as mentioned previously, “the new criteria

for the revocation of probation set out in KRS 439.3106 also applies to the

voidance of diversion.” Richardson, 494 S.W.3d at 498.

For his sole issue on appeal, Kimberlin argues the trial court failed to

make the appropriate findings required by KRS 439.3106. A review of the record

supports this argument; the trial court did not make the required statutory findings,

either orally or by written order, in accord with Andrews and its progeny. The

-4- Commonwealth concedes the issue and admits the error below was palpable, citing

Burnett v. Commonwealth, 538 S.W.3d 322, 324 (Ky. App. 2017). We agree.

For the foregoing reasons, we reverse the judgment and sentence of

imprisonment imposed by the Henry Circuit Court. On remand, the trial court

shall conduct a new hearing on voiding Kimberlin’s diversion to allow the court to

consider sanctions other than imprisonment. If the trial court finds Kimberlin

should be incarcerated based on the findings outlined in KRS 439.3106, the trial

court shall explicitly state those findings for the record, either orally or by written

order, before entering a new judgment.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Molly Mattingly Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky

Robert Baldridge Assistant Attorney General Frankfort, Kentucky

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