Nathan Bentley v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: March 31, 2022
• Docket: 2021 CA 000703
• Status: Unknown

Opinion

RENDERED: APRIL 1, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-0703-MR

NATHAN BENTLEY APPELLANT

APPEAL FROM LETCHER CIRCUIT COURT v. HONORABLE JAMES W. CRAFT, II, JUDGE ACTION NO. 09-CR-00203

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION VACATING

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BEFORE: GOODWINE, MAZE, AND McNEILL, JUDGES.

GOODWINE, JUDGE: Nathan Bentley (“Bentley”) appeals the Letcher Circuit

Court’s order revoking his probation. After careful review, finding error, we

VACATE the Letcher Circuit Court’s April 29, 2021 order.

In 2009, Bentley was indicted on charges of second-degree burglary,

kidnapping, wanton endangerment, and fourth-degree assault in No. 09-CR-00203. In January 2011, the circuit court accepted Bentley’s guilty plea and sentenced him

to ten years probated for five years and $130 in court costs.

In July 2011, Bentley was arrested on other charges and was

subsequently indicted under three separate indictments (Nos. 11-CR-00229, 11-

CR-00230, and 12-CR-00117). On July 29, 2011, the Commonwealth moved to

revoke Bentley’s probation in No. 09-CR-00203. The circuit court set a probation

revocation hearing for September 27, 2011. The parties dispute why the hearing

did not occur at that time. The Commonwealth contends Bentley requested a

continuance to work out “a package deal.” Bentley contends nothing in the record

supports the Commonwealth’s contention. Bentley pled guilty to the three new

indictments. The Commonwealth’s Offer on a Plea of Guilty was entered on

February 27, 2013, and the Judgment and Sentence – Plea of Guilty was entered on

May 2, 2013. Bentley contends that even if his probation was tolled because he

requested a continuance to work out a “package deal,” that tolling stopped once the

“package deal” was completed, i.e., after the judgment(s) of conviction were

entered on the pleas of guilty to the new charges.

On March 29, 2021, the circuit court entered an order setting a

probation revocation hearing for April 14, 2021. Bentley filed a pro se motion to

dismiss the action and discharge or terminate his term of probation. He stated

prison authorities informed him they discovered his probation had never been

-2- revoked in No. 09-CR-00203, and they contacted the prosecutor. This lead to the

hearing being scheduled. The Commonwealth responded arguing Bentley

admitted to the probation violations when he entered plea agreements on the three

unrelated indictments. The Commonwealth further argued the sentence must run

consecutively to the ten years of imprisonment for the unrelated charges in the

three indictments.

On April 21, 2021, the circuit court held the probation revocation

hearing. Bentley argued under Kiser v. Commonwealth, 829 S.W.2d 432 (Ky.

App. 1992), the 90 days to revoke starts at the time the Commonwealth moved to

revoke his probation, and if probation is not revoked during that period, it must run

concurrent with the new charges. Additionally, he argued his probationary period

expired in 2016, and no order was ever entered revoking his probation before it

expired in this case or in his 2013 plea agreements. The Commonwealth argued

the probation revocation hearing was continued at Bentley’s request, so the 90-day

period was tolled. The circuit court took the matter under advisement and stated it

would review the record and enter an order accordingly.

On April 29, 2021, the circuit court entered an order revoking

Bentley’s probation. The court entered a form order and checked boxes finding

Bentley guilty of the violations alleged, and that he “has shown a complete

disregard of the conditions of his/her probation and poses a significant risk to prior

-3- victims or the community at large and cannot be appropriately managed in the

community. Accordingly, it would be futile to attempt other sanctions, therefore

the Defendant is REVOKED and is to serve the sentence ordered in the

Judgment.” Record (R.) at 128-129. The circuit court also checked a box finding

“Defendant shall be delivered to the custody of the Department of Corrections at

such location within this Commonwealth as Corrections shall designate.” R. at

129. This appeal followed.

On appeal, Bentley argues the circuit court erred in: (1) revoking his

probation after the probationary period had expired; (2) ordering his sentence in

this case to run consecutively with his subsequent sentences; (3) and failing to

apply KRS 439.3106(1)(a). This matter involves interpretation of statutes and the

decision to revoke Bentley’s probation. We review matters of statutory

interpretation de novo. Commonwealth v. Tapp, 497 S.W.3d 239, 241 (Ky. 2016)

(citation omitted). “The appellate standard of review of a decision to revoke a

defendant’s probation is whether the trial court abused its discretion.” Blankenship

v. Commonwealth, 494 S.W.3d 506, 508 (Ky. App. 2015) (citation omitted).

First, Bentley argues the circuit court erred in revoking his probation

after his probationary period had expired. Bentley asserts his probationary period

expired in 2016, the circuit court never extended his probation, and the order

revoking his probation was entered in 2021. KRS 533.020(4) provides in pertinent

-4- part: “Upon completion of the probationary period, . . . the defendant shall be

deemed finally discharged, provided no warrant issued by the court is pending

against him, and probation, probation with an alternative sentence, or conditional

discharge has not been revoked.” In Commonwealth v. Tapp, the Supreme Court

of Kentucky held:

The language of KRS 533.020(4) is clear: probation is automatically discharged upon completion of a probationary period unless it has been revoked or an arrest warrant is pending. If neither condition exists, the trial court loses jurisdiction both to revoke and to modify the conditions of probation. A warrant remains “pending” until the defendant is brought before the court at which time, given probable cause to do so, the court may extend the probationary period for a reasonable time until a revocation hearing can be held.

497 S.W.3d at 242. Under Tapp, the circuit court lost jurisdiction to revoke

Bentley’s probation when his probationary period expired in 2016. Thus, the

circuit court erred in entering the order revoking Bentley’s probation after it had

expired. Therefore, the April 29, 2021 order is hereby VACATED.

Bentley’s No. 09-CR-00203 probation expired January 6, 2016, five

years after entry of his January 6, 2011 judgement of conviction. Bentley argues

the circuit court erred in ordering his sentence in this case to run consecutively

with his subsequent cases. The Commonwealth contends Bentley waived the 90-

day period by asking for a continuance of the September 27, 2011 probation

revocation hearing. There is no evidence of this in the record aside from the

-5- Commonwealth’s assertion, and the Commonwealth cites no law in support of this

contention. However, Bentley and the Commonwealth are wrong.

Although it lacked jurisdiction, the circuit court revoked Bentley’s

probation more than 90 days after the motion to revoke was filed. “KRS

533.020(1) provides that a probated sentence may be revoked ‘at any time’ prior to

the expiration or termination of the period of probation.” Sutherland v.

Commonwealth, 910 S.W.2d 235, 236 (Ky. 1995). KRS 533.040(3) “provides that

any revocation of probation (which occurs outside of the 90-day period) is to be

run concurrently with any other offense.” Sutherland, 910 S.W.2d at 237.

However, KRS 533.060 takes precedence over the 90-day requirement of KRS

533.040(3). KRS 533.060 forbids concurrent sentencing if a defendant commits

additional felonies while on probation from a previous felony. Bentley relies on

Kiser, 829 S.W.2d 432. Kiser was issued by another panel of this Court in 1992.

Since then the Kentucky Supreme Court has issued at least five opinions clarifying

the conflict between these two statutes.1

1 Brewer v. Commonwealth, 922 S.W.2d 380, 381-82 (Ky. 1996) (holding that the provision in KRS 533.060(2), which forbids concurrent sentences for subsequent felonies, controlled over the 90-day limitation contained in KRS 533.040(3)); Commonwealth v. Love, 334 S.W.3d 92, 93 (Ky. 2011) (reaffirmed its ruling in Brewer holding that KRS 533.040(3) does not apply when a Kentucky state court probationer incurs a new Kentucky state court felony sentence while on probation . . .); Commonwealth v. Wright, 415 S.W.3d 606, 608 (Ky. 2013) (holding that the trial court will lose jurisdiction to revoke if the probationary period is not extended prior to the expiration of the probation); Tapp, 497 S.W.3d at 242 (holding that under KRS 533.020, probation is discharged upon completion of the probationary period unless it has been revoked or an arrest warrant is pending. If neither condition exists, the trial court has no jurisdiction to

-6- Finally, Bentley argues the circuit court erred in failing to address the

criteria of KRS 439.3106(1). In Commonwealth v. Gilmore, 587 S.W.3d 627, 630

(Ky. 2019) the Supreme Court of Kentucky addressed required findings under the

statute:

We acknowledge that “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.

. . . Although not explicitly discussed in either Alleman or Andrews, implicit in their holdings is the notion that we look to both the written and oral findings in conjunction with one another and not separately in a vacuum. Therefore, we must look at the trial court’s findings – both in open court and in its written order – to determine whether KRS 439.3106(1) and due process requirements were met.

Here, the circuit court checked a box on a form order which

essentially quotes the two requirements under KRS 439.3106(1). However, the

circuit court did not make any oral findings on the record or any further findings in

the written order. Although there was no dispute Bentley violated his probation,

the circuit court failed to make factual findings explaining how Bentley’s violation

revoke probation); and most recently, in Commonwealth v. Collinsworth, 628 S.W.3d 82, 85-88 (Ky. 2021) (holding that the fact that the probation revocation hearing was not conducted within 90 days does not override the consecutive sentencing requirement of KRS 533.060).

-7- “constitutes a significant risk to prior victims of the supervised individual or the

community at large, and cannot be appropriately managed in the community[.]”

KRS 439.3106(1)(a). Thus, the circuit court erred in merely citing the perfunctory

language of the statute. Because Bentley’s probationary period expired and the

order revoking is VACATED, the circuit court need not correct the error in the

April 29, 2021 order, but is cautioned to make the requisite factual findings in the

future explaining how a defendant’s violation “constitutes a significant risk to prior

victims of the supervised individual or the community at large, and cannot be

appropriately managed in the community[.]” KRS 439.3106(1)(a).

For the foregoing reasons, we VACATE the April 29, 2021 order of

the Letcher Circuit Court revoking Bentley’s probation. Said probation expired on

January 6, 2016. At that time, Bentley began serving his ten-year sentence for

indictments Nos. 11-CR-00229, 11-CR-00230, and 12-CR-00117.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Roy Alyette Durham, II Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky

Perry T. Ryan Assistant Attorney General Frankfort, Kentucky

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