RENDERED: APRIL 22, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0718-MR
LAVONTE GRACE APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE AUDRA J. ECKERLE, JUDGE ACTION NO. 20-CR-000347-001
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CETRULO, DIXON, AND LAMBERT, JUDGES.
CETRULO, JUDGE: Lavonte Grace appeals an order of the Jefferson Circuit
Court removing him from pretrial diversion, denying him probation, and
sentencing him to a term of imprisonment consistent with his prior guilty plea to a
class D felony offense. Upon review, we affirm. BACKGROUND
On February 5, 2020, Lavonte Grace was indicted in Jefferson Circuit
Court on charges of robbery in the first degree (complicity); illegal possession of a
controlled substance in the first degree, schedule II methamphetamine, while in
possession of a firearm (complicity); illegal possession of a controlled substance in
the first degree, schedule II cocaine, while in possession of a firearm; trafficking in
a controlled substance in the first degree, schedule II cocaine, less than four grams,
while in possession of a firearm; receiving a stolen firearm (complicity); and
possession of a firearm by a convicted felon. On October 22, 2020, pursuant to the
terms of a plea agreement with the Commonwealth, Grace instead pled guilty to a
reduced charge of possession of a controlled substance in the first degree, schedule
II methamphetamine, a class D felony, and was granted pretrial diversion. As set
forth in the circuit court’s order of that date, Grace’s diversion was conditioned
upon the following terms:
A. The period of Pretrial Diversion shall be 5 years.
B. The penalty to be imposed if the diversion is voided is three years.
C. The diversion is to be supervised.
D. The defendant shall not have access to a handgun or firearm during the pendency of the Pretrial Diversion.
-2- E. As required by KRS[1] 533.030(1), the defendant shall not commit another offense during the period of the Pretrial Diversion. Specifically, the defendant shall have no violation of the Penal Code or the Controlled Substances Act, or any other criminal law.
On January 15, 2021, Grace was arrested and charged with new
offenses, including but were not limited to: (1) receiving stolen property $10,000
or more; (2) tampering with physical evidence; (3) fleeing or evading police, first
degree; (4) possession of marijuana; and (5) violation of the circuit court’s October
22, 2020 order prohibiting Grace from having access to firearms. Due to Grace’s
new charges, the Commonwealth moved the circuit court to remove Grace from
diversion and, consistent with his agreement, sentence him to a three-year term of
incarceration.
On March 11, 2021, the circuit court held a telephonic diversion
removal hearing. Grace chose not to testify or call any witnesses. The
Commonwealth, on the other hand, called Probation and Parole Officer Nicolette
Whalen, who verified Grace had voluntarily executed the diversion agreement
which prohibited him from breaking the law or having any access to firearms.
The Commonwealth also called Joshua Arnwine, one of the Louisville
Metro Police Department (LMPD) officers who had participated in Grace’s arrest
on January 15, 2021. In sum, Officer Arnwine testified that at 3:29 p.m., he had
1 Kentucky Revised Statute.
-3- received a dispatch regarding three black males waving handguns2 around a
vehicle they were tinting at 1639 Prentice Street in Louisville. He testified that
when he arrived at the scene shortly thereafter, he witnessed three men fitting the
description of the dispatch gathered around a white SUV, which Officer Arnwine
confirmed had been reported stolen two days earlier and was valued at
approximately $17,000. He testified that the rear passenger side door was open; he
observed Grace leaning inside that area of the vehicle; and that upon noticing his
police cruiser pulling up, Grace and another of the three men3 fled, despite Officer
Arnwine’s repeated commands for them to stop. Officer Arnwine arrested the
remaining man. Meanwhile, LMPD officer J. Kerger, who had also responded to
the dispatch and was attempting to locate the fleeing men, eventually caught and
arrested Grace.
Upon searching the SUV, LMPD officers discovered a fully loaded
AK-style rifle in the rear passenger area where Officer Arnwine had indicated
Grace had been leaning into the vehicle. Officers also discovered several pieces of
window tinting material in the front passenger seat of the vehicle, along with four
2 Officer Arnwine testified that when he arrived at the scene, he believed he saw a handgun in the waistband of Grace’s pants and in the waistband of the pants of the unidentified man who escaped. He further testified, however, that no handguns were ultimately discovered in the area or on Grace’s person upon his arrest. 3 Officer Arnwine testified the other man who fled and was never caught nor identified was standing at the driver’s side door of the SUV when he arrived.
-4- bags of marijuana on the driver’s seat. Using a canine unit, they also located a
fifth bag of marijuana – of the same appearance as the other four – in Grace’s path
of flight from the scene.
Recall, two of Grace’s new charges stemming from his January 15,
2021 arrest were his alleged violation of the circuit court’s October 22, 2020 order
prohibiting him from having access to firearms; and his alleged violation of KRS
520.095, the statute applicable to fleeing or evading police, first degree. With that
said, we pause to note two details that are the primary focuses of Grace’s appeal –
namely, Officer Arnwine’s specific testimony regarding: (1) Grace’s “access” to
the rifle discovered in the backseat of the SUV; and (2) whether, as required by
KRS 520.095(1)(b)2., his flight from the scene (which had caused Officer Kerger
to give him chase) also caused or created a substantial risk of physical injury to
any person. Regarding the former detail, Officer Arnwine testified:
COMMONWEALTH: Okay, officer. In terms of the proximity or the access of Lavonte Grace to the AK-47, how close was he when you first arrived on-scene? How close was he to the AK-47?
ARNWINE: About as close as you could be. I mean, he was, he was at, not only in the backseat, or on the backseat, back passenger door, he was actually leaned into the vehicle. All three subjects were leaned into the vehicle, and he was the only one that was leaning into the back seating area of the vehicle.
-5- As to the latter detail, in its March 12, 2021 order removing Grace
from pretrial diversion, the circuit court would later summarize Officer Arnwine’s
testimony as indicating, from Officer Arnwine’s perspective, that Grace
“endangered officers’ lives by causing them to chase in busy traffic.” Officer
Arnwine also indicated in his testimony, however, that Officer Kerger did not
arrive with him at the initial scene where the SUV was located; and that he did not
assist Officer Kerger – who had arrived shortly afterward about a block or so away
– in chasing Grace. In other words, Officer Arnwine could only speculate about
the danger the chase presented. His specific testimony on that subject was as
follows:
COMMONWEALTH: And the foot chase that you described, with Lavonte Grace running from officers, where did that, did that take place in traffic? In streets? Describe that for us, please.
ARNWINE: Yeah, so it was, the vehicle was backed into a driveway in that alley in the 1600 block of West Kentucky. He initially fled through some apartments that were being renovated to West Kentucky Street, and then caused Officer Kerger to have to run across West Kentucky Street, I believe, twice in order to continue pursuing Mr. Grace. And West Kentucky Street generally has consistent traffic.
COMMONWEALTH: And therefore, were officers potentially put in danger of serious physical injury?
ARNWINE: Yes, Officer Kerger was. Yes.
(Emphasis added.)
-6- The circuit court also considered Arnwine’s additional testimony that
Grace’s fingerprints or DNA had not as of yet been discovered on the bag of
marijuana that had been found in Grace’s path of flight; and that when Grace was
arrested, the keys to the SUV were not on his person. Nevertheless, after
considering what is set forth above, the circuit court removed Grace from
diversion, explaining in relevant part:
The Court finds that Defendant has violated the terms and conditions of his felony diversion. The Court showed Defendant tremendous mercy by offering him diversion on very serious felonies. The testimony at the removal hearing revealed Defendant was involved in a disturbing series of crimes on January 15, 2021, a mere three months after being diverted. Clearly, Defendant fled from the police, which alone would violate his diversion. Moreover, the proof is uncontroverted that Defendant had access to firearms, unlawful narcotics, and a stolen vehicle. Leaving him on diversion would be futile and would do a disservice to those who strive to comply with diversion and the law.
The Court gave due consideration to the nature and circumstances of the crimes, and the history, character, and condition of Defendant. The Court is of the opinion that continued diversion should be denied for the following reasons:
A. There is a substantial risk that during a period of diversion, Defendant will commit even more crimes;
B. Defendant is in need of correctional treatment that he has declined to complete voluntarily;
-7- C. Continued diversion would unduly depreciate the seriousness of Defendant’s crimes and misdeeds while on diversion;
D. Defendant’s failure to abide by the conditions of supervision constitutes a significant risk to prior victims or the community; and
E. Defendant’s continued diversion risks the safety of the public. An alternative sanction was considered by the Court, but rejected as inappropriate.
Wherefore, IT IS HEREBY ORDERED that this matter is continued for a sentencing hearing on May 19, 2021, at 1:15 p.m. The Division of Probation and Parole shall prepare a written presentence investigation report.
Prior to the May 19, 2021 sentencing hearing, Grace moved the circuit
court to reconsider its order of removal based upon new evidence which he
believed materially contradicted Officer Arnwine’s testimony that he had been
observed leaning inside the back passenger side of the SUV where the rifle had
been located, and that his flight had placed officers at potential risk of serious
injury. The new evidence in question consisted of footage from Arnwine’s and
Kerger’s body cameras of the events surrounding his January 15, 2021 arrest.
Regarding that footage, Grace emphasized that when Arnwine’s body camera was
able to clearly depict the back passenger door of the SUV, the door to the vehicle
appeared to be closed. Also, he correctly pointed out, Officer Kerger’s body
camera demonstrated that the streets Kerger ran up and down over the course of
their roughly two minute chase were free of any traffic; that Kerger could have
-8- chosen to run on the sidewalk instead; and that he was no longer running, and had
stopped, when Kerger finally caught him.
Apart from that, Grace argued the Commonwealth had adduced
insufficient evidence demonstrating he was guilty of his new charges. In that
respect, he asserted that nothing produced by the Commonwealth indicated he
knew or had reason to know the SUV was a stolen vehicle; that flight alone was
not enough to prove fleeing or evading police, first degree; and that he was never
found in possession of a firearm when he was arrested.
At the onset of the sentencing hearing, the circuit court indicated it
had reviewed Grace’s written motion to reconsider; it was unsure about the
propriety of Grace’s motion; but that it would nevertheless consider his motion and
hear oral arguments pertaining to it. It added that it had reviewed the body camera
footage in question and did not “think that the body cams support [Grace’s]
argument, or at least don’t contradict the findings that the court made at the last
hearing. So, I’m inclined to go ahead with the sentencing today, but I will allow
[defense counsel] to say whatever you’d like when you make the request for
probation today.” Afterward, Grace, through counsel, reiterated the arguments set
forth in his written motion.
Upon consideration, the circuit court rejected Grace’s arguments, as
well as his further argument for probation as opposed to incarceration. In its
-9- May 20, 2021 judgment of conviction and sentence, consistent with what it stated
at the hearing on the prior day, the circuit court explained, “At the onset of the
hearing, the Court noted Defendant’s motion for reconsideration was procedurally
improper. Nonetheless, the Court reviewed the two bodycams and was
unpersuaded to modify its decision for the reasons stated on the record.” The
circuit court’s judgment then set forth the relevant substance of Grace’s diversion
agreement; and, in sentencing Grace in conformity with the three-year period of
incarceration associated with his guilty plea set forth above, the circuit court made
the following relevant determinations:
The Court gave due consideration to the nature and circumstances of the crime, and the history, character, and condition of Defendant. The Court is of the opinion that probation, probation with an alternative sentencing plan, or conditional discharge should be denied for the following reasons.
A. There is a substantial risk that during a period of probation, probation with an alternative sentencing plan, or conditional discharge, Defendant will commit other crimes;
B. Defendant is in need of correctional treatment that can be provided most effectively by his commitment to a correctional facility;
C. Probation, probation with an alternative sentencing plan, or conditional discharge would unduly depreciate the seriousness of Defendant’s crimes;
-10- D. Defendant’s failure to abide by the conditions of supervision constitutes a significant risk to prior victims or the community; and
E. Defendant cannot be appropriately managed in the community and risks the safety of the public.
Following the circuit court’s order, Grace filed the instant appeal.
Additional facts will be discussed as necessary in the context of our analysis.
ANALYSIS
A circuit 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); KRS 533.256(2). “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)). “Put another way, 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)).
-11- A circuit court has “broad discretion in overseeing a defendant’s
[diversion], including any decision to revoke[.]” Andrews, 448 S.W.3d at 777.
Historically, a circuit court could remove a person from diversion if there was
evidence that the defendant failed to comply with the conditions of diversion, or
was not making satisfactory progress toward the completion of the provisions of
the diversion agreement. KRS 533.256; Ballard v. Commonwealth, 320 S.W.3d
69, 73 (Ky. 2010). The Kentucky General Assembly qualified the circuit court’s
discretion when it enacted the Public Safety and Offender Accountability Act,
commonly referred to as House Bill 463 (HB 463),4 in 2011. Andrews, 448
S.W.3d at 776. With that package and the creation of KRS 439.3106, the General
Assembly provided new criteria for voiding diversion. Specifically, KRS
439.3106(1) provides that 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.
4 2011 Ky. Acts ch. 2 (HB 463) (eff. March 3, 2011).
-12- Since HB 463, to void diversion, the trial court must find by a
preponderance of evidence: (1) that the diversioner violated a condition of
diversion; (2) that the violation constitutes a significant risk to prior victims or to
the community at large; and (3) that the diversioner cannot be appropriately
managed in the community. KRS 439.3106; KRS 533.256(1); Andrews, 448
S.W.3d at 778-79; Richardson, 494 S.W.3d at 499.
With that in mind, we now proceed to Grace’s arguments on appeal.
To begin, Grace makes three somewhat interrelated and unpreserved procedural
arguments. First, he contends the circuit court’s March 12, 2021 interlocutory
order removing him from pretrial diversion was deficient because it did not
specifically indicate that he could not be appropriately managed in the community,
per KRS 439.3106(1). Second, he argues the circuit court’s statement in its final
order of May 20, 2021 – that his motion for reconsideration was “procedurally
improper” – violated his due process rights. Third, he argues that when the circuit
court “nonetheless” reviewed his motion for reconsideration, it did not
“meaningfully” review it because the circuit court had already, in his view,
apparently decided to deny his motion without first hearing his oral arguments.
We disagree. To be sure, circuit courts are required by statute, prior
to removing individuals from pretrial diversion or probation, to make a finding to
the effect that the individual in question cannot be appropriately managed in the
-13- community. See KRS 439.3106(1)(a); see also Richardson, 494 S.W.3d at 498
(explaining the findings required by KRS 439.3106(1)(a) must be made when
voiding pretrial diversion). And, a circuit court’s failure to make such a finding is
reviewable by this Court, even if the error was unpreserved below. See Walker v.
Commonwealth, 588 S.W.3d 453, 457-59 (Ky. App. 2019) (applying palpable error
review under Kentucky Rule of Criminal Procedure 10.26); see also Burnett v.
Commonwealth, 538 S.W.3d 322, 324 (Ky. App. 2017).
That said, Grace’s argument that the circuit court failed to effectively
find that he could not be appropriately managed in the community (i.e., his first
unpreserved argument) is undermined by his second unpreserved argument. As
Grace notes in the context of making his second unpreserved argument, the circuit
court’s order removing him from diversion was interlocutory, and circuit courts
have broad authority to modify and revise their interlocutory orders. Moreover,
interlocutory orders are deemed readjudicated upon the entry of a final order
disposing of all remaining issues in a given action. See CR5 54.02(2). Here, in its
May 20, 2021 final order of sentencing, the circuit court explicitly found that
Grace “cannot be appropriately managed in the community[.]” Because the circuit
court’s May 20, 2021 order both included that finding, and effectively
5 Kentucky Rule of Civil Procedure.
-14- readjudicated the prior March 12, 2021 interlocutory order, it cured what Grace
now perceives as the deficiency of the March 12, 2021 order.
As to Grace’s second unpreserved argument, it is undermined by his
third. True, the circuit court indicated its belief that his motion to reconsider was
improper. But, the circuit court’s statement to that effect did not deny him due
process; as Grace points out in this third argument, the circuit court “nonetheless”
considered his motion and addressed it on the merits.
As to his third unpreserved argument, the circuit court did express
misgivings about Grace’s motion for reconsideration at the onset of the May 19,
2021 hearing. Prior to that time, however, it had already reviewed Grace’s written
motion and considered the full extent of his arguments and supporting evidence;
and during the hearing, prior to its final disposition of this matter, it nevertheless
provided Grace an opportunity to be heard regarding his motion – at which time he
merely reemphasized the substance of his written motion. Grace cites no authority
– and we have found none – indicating that circumstances such as those could give
rise to a due process violation, let alone a due process violation that exceeds the
threshold of harmless error.
Having determined Grace’s unpreserved procedural arguments lack
merit, we now proceed to his substantive arguments. First, Grace asserts the
circuit court removed him from diversion and denied him probation based upon
-15- less than a preponderance of the evidence. In that respect, he contends the circuit
court erroneously believed that his flight from authorities on January 15, 2021,
placed Officer Kerger in danger; and that no evidence was adduced indicating he
knew the SUV had been stolen.
Grace is correct and indeed fortunate that, from all appearances of
Officer Kerger’s body camera footage, his flight did not place Officer Kerger or
anyone else in danger. Likewise, the record before us bears no indication of
whether Grace knew the SUV was stolen. While the circuit court cited those
factors as reasons for removing him from diversion, they were not the only reasons.
Indeed, the plain language of KRS 439.3106 does not require more than one
violation.
That, in turn, leads to Grace’s next argument. He asserts the circuit
court removed him from diversion and denied him probation because it
erroneously believed he had “access” to a firearm, in violation of his diversion
agreement, shortly prior to his arrest on January 15, 2021. In that vein, he
contends the footage from Officer Arnwine’s body camera completely contradicts
Officer Arnwine’s testimony about spotting him leaning into the rear passenger
side of the SUV (where the AK-style rifle was located) upon arriving at the scene.
We disagree. As set forth in its March 12, 2021 order, the circuit
court stated that “the proof is uncontroverted that Defendant had access” to a
-16- firearm. The circuit court later explained on the record during the subsequent
May 19, 2021 hearing what it meant by that statement, noting that Grace had
offered no testimony or other evidence contrary to Officer Arnwine’s testimony,
and that the footage from Officer Arnwine’s body camera was inconclusive in that
respect.
This Court has also reviewed the footage in question, and we are left
with the same conclusion. The footage begins from the vantage point of the
interior of Officer Arnwine’s cruiser as it makes a right turn and quickly proceeds
down an alleyway behind a series of residences and apartment buildings. There
are then approximately 20 seconds of footage between when the driver’s side of
the white SUV comes into view from behind the windshield of cruiser as it closes
in on the scene, and when the back rear passenger door of the SUV becomes
visible. During that time, Officer Arnwine stops his cruiser, turns to the left to exit
his cruiser, which causes the body camera footage to focus for a few moments
upon the floor of the vehicle, and then in the opposite direction of the SUV. Then,
as Officer Arnwine approaches the scene shouting commands for the fleeing
suspects to stop, his gun is drawn and blocks any view of the back rear passenger
door. After he turns to the right to arrest the remaining suspect – at which point
Grace had already fled – the back rear passenger door can be seen, and it is closed.
-17- When Grace noted during the May 19, 2021 hearing that the back rear
passenger door is closed when it finally comes into view in the footage, the circuit
court stated – as Grace now emphasizes in his brief – “What if he closed the door
right before he started to run?” Contrary to Grace’s characterization, however, that
statement does not indicate the circuit court relied upon speculation and conjecture
to support the notion that he had access to a firearm. Rather, the circuit court was
weighing Officer Arnwine’s testimony that he had witnessed Grace leaning into
the SUV where the AK-style rifle was located against what Grace believed
detracted from that testimony (i.e., the body camera footage); and after doing so,
the circuit court concluded the body camera footage was not enough to render
Officer Arnwine’s testimony unreliable or less than a preponderance of the
evidence. Considering the foregoing, we agree with the circuit court; and we find
no error in the circuit court’s decision to cite it as substantial evidence that Grace
violated the terms of his diversion prohibiting him from having access to firearms.
Other bases of the circuit court’s removal order were, as indicated,
Grace’s alleged access to and possession of narcotics, and tampering with evidence
– relating to the four bags of marijuana found in the SUV that Grace was seen
leaning into by Officer Arnwine, and the fifth bag of the same appearance that was
later discovered in Grace’s flight path by a canine unit. The evidence adduced was
sufficient to satisfy the preponderance standard.
-18- Grace’s final argument is that the circuit court’s finding that he could
not be “appropriately managed in the community[,]” for purposes of KRS
439.3106(1), “is not supported by evidence at the hearing. There was no
discussion or proof that Mr. Grace had declined any kind of treatment.”
We disagree. “[W]hile HB 463 reflects a new emphasis in imposing
and managing [diversion], it does not upend the trial court’s discretion in matters
of [diversion], provided that discretion is exercised consistent with statutory
criteria.” McClure, 457 S.W.3d at 731-32 (quoting Andrews, 448 S.W.3d at 780).
Over the course of the orders it entered in this matter, the circuit court explicitly
considered the criteria under KRS 439.3106, finding Grace posed a significant risk
to the community at large and could not be appropriately managed in the
community. The circuit court based its conclusions upon substantial evidence that
Grace: (1) willfully disobeyed an officer’s directive to stop, and instead fled from
arrest; (2) accumulated new criminal charges a mere three months after being
placed on diversion; and (3) accumulated new criminal charges that, like his
previously diverted charges, consisted of serious offenses involving firearms and
narcotics – indicating Grace remained engaged in his same pattern of criminal
misconduct notwithstanding his placement on diversion, and that he continued to
present a danger to the community.
-19- The circuit court’s order was based upon its weighing of the testimony
presented at the evidentiary hearing and issued after considering the statutory
criteria of KRS 439.3106. We decline to second guess the circuit court’s decision.
“[T]he importance of certain facts is not ours to weigh on appeal, but is properly
left to the trial court’s exclusive discretion.” McClure, 457 S.W.3d at 734. Even
though “another judge may have opted for a lesser sanction, the trial court’s
decision . . . was neither arbitrary nor unreasonable.” Andrews, 448 S.W.3d at 781.
CONCLUSION
In light of the foregoing, we AFFIRM.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Jazmin P. Smith Daniel Cameron Louisville, Kentucky Attorney General of Kentucky
Stephanie L. McKeehan Assistant Attorney General Frankfort, Kentucky
-20-