RENDERED: APRIL 10, 2026; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2024-CA-1184-MR
TIMOTHY ESTEPP APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT v. HONORABLE JULIE REINHARDT WARD, JUDGE ACTION NO. 22-CR-00322
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION VACATING & REMANDING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; COMBS AND ECKERLE, JUDGES.
ECKERLE, JUDGE: Appellant, Timothy Estepp (“Estepp”), seeks review of the
Campbell Circuit Court’s Order dated August 29, 2024, voiding his felony
diversion and sentencing him to three years, probated for three years in accordance
with his guilty plea to Theft by Unlawful Taking (“TBUT”) under $10,000
(Controlled Substance). Estepp argues that the Trial Court abused its discretion by
failing to make the requisite findings according to Kentucky Revised Statute (“KRS”) 439.3106. He also contends that the Trial Court committed palpable error
by increasing the sum of his monthly restitution payments. After careful
consideration and thorough review, we vacate the Trial Court’s order because it
stated insufficient findings and remand for further proceedings. Because we are
not finding that the Trial Court’s ultimate conclusion that diversion should be
removed is an abuse of discretion or otherwise incorrect, we are not reversing the
decision. However, upon remand we are requiring the Trial Court either to
delineate its reasoning and required conclusions to support its decision or to reach
a different decision.
I. Factual and Procedural History
On August 18, 2022, the Campbell County Grand Jury indicted
Estepp for TBUT under $10,000 (Controlled Substance). Although not specified
in the indictment, the Trial Court questioned Estepp at a hearing on March 14,
2023, and he admitted to stealing 120 oxycodone pills and other scheduled drugs
from Walgreens “for a friend.” Video Record Supplemental (“VR Supp”),1 2023-
03-13 at 1:35-2:45. It is not clear whether this large, lethal amount of narcotics
1 The Video Record consists of two CD-ROM discs, one marked “2024-CA-1184, Tim Estepp, 22 CR 322,” and a second marked “Supplemental 24-CA-1184, 22 CR 322,” which we will reference “VR” and “VR Supp,” respectively. The “VR Supp.” disc contains hearings conducted prior to and at Estepp’s plea and preliminary dispositional hearing, and the “VR” disc contains hearings occurring after his plea and felony diversion agreement. As noted by the parties, the VR does not contain the usual date and time stamps. Times referenced are from the runtime of the video clip.
-2- entered the illicit drug trade but it is certain to have had less than a benign effect.
The Commonwealth confirmed that the drugs were never recovered; but it reported
that Estepp had assisted in the investigation and determination of the restitution
owed to Walgreens. Id., at 3:47-4:10. Estepp now contests restitution. And it
appears that he did not provide the names of the individuals who received the
contraband directly from him. Apparently, no one else was prosecuted. The Trial
Court expressed some reluctance at the Commonwealth’s generous offer of
diversion under the circumstances. However, it ultimately accepted Estepp’s
guilty plea and approved the felony diversion agreement, pursuant to which Estepp
received a supervision term of five years, conditioned upon his agreement to pay
restitution in the amount of $26,409.61, with the first payment of at least $440 due
within 30 days. Trial Record (“TR”), pp. 42-44. The Trial Court also conditioned
its approval of pretrial diversion on Estepp’s being evaluated for substance abuse
and following up on all recommended treatment; submitting his residence to the
Division of Probation and Parole (“P&P”); not changing his residence without the
approval of his P&P officer; and following the provisions of the pretrial diversion
agreement and all other standard conditions of supervision. TR, pp. 39-41.
Later that same year, in November of 2023 and again in December of
2023, Estepp filed a request with the Interstate Compact Offender Tracking System
(“ICOTS”) for a transfer of supervision to Ohio. Kentucky P&P submitted both of
-3- Estepp’s ICOTS requests to the Ohio Adult Parole Authority (“Ohio APA”), which
denied each request. TR, p. 55.
Not long afterward, on January 30, 2024, Officer Konner Frost
(“Frost”) with P&P filed a Violation of Supervision Report (“VSR”) and affidavit
alleging that Estepp had violated the conditions of the felony diversion program by
failing to make his regularly scheduled restitution payments. TR, pp. 45-47. Frost
alleged that between March of 2023 and January of 2024, Estepp had paid only
$1,100 toward his restitution, leaving a deficit of $4,400 that he should have paid
over ten months. Id. On February 27, 2024, the Trial Court conducted the first
felony diversion termination hearing in this case. Estepp stipulated to the violation
and advised the Trial Court that he anticipated both a salary increase and rent
savings by getting a roommate. VR, 2023-02-27, at 2:04-3:24. Based on the
foregoing, the Trial Court found “that although [Estepp] violated his felony
diversion . . . he [was] still manageable in the community provided he begins
making regular monthly payments toward the restitution owed.” TR, p. 53. The
Trial Court set Estepp’s monthly restitution payments at the same sum of $440 to
begin March 13, 2024, and to be paid on the 13th of the month thereafter until paid
in full. Id.
Not quite eight months after the first VSR, on August 5, 2024, Frost
filed a second VSR, accompanied by an affidavit, alleging that Estepp had again
-4- violated the conditions of the felony diversion program. TR, pp. 54-56. Frost
alleged that Estepp had: (1) failed to report to P&P as directed; (2) provided a
false home address to P&P, indicating that he resided in Highland Heights,
Kentucky, when he actually was residing in Cincinnati, Ohio; (3) failed to report to
P&P his change of address to Cincinnati, Ohio, having left the area of his
supervision without authorization and against the express denials of an ICOTS
transfer; and (4) failed to progress with his regular monthly restitution payments.
Id. The Trial Court conducted a hearing on August 27, 2024, at which Estepp
stipulated to the violations. VR, 2024-08-27, 0:28-0:35.
At the hearing, Estepp called his brother to testify as a character
witness. VR, 1:10. His brother testified that Estepp served in the U.S. Army,
formerly in active, deployed duty, and then as a firearms trainer with the U.S.
Army National Guard. VR 1:40-2:32. He also testified that Estepp was employed
as a body piercer with “Ballistic” tattoo shop. VR, 2:33-2:40. In response to
questioning by Estepp’s counsel, the brother testified that Estepp was allowed to
carry a firearm and that he had called Estepp while he was on the firing range
training soldiers. VR, 2:40-3:00. However, Estepp contradicted this information
under oath, testifying that his employment as a marksmanship instructor was
procedural in nature, educating his fellow soldiers in the steps necessary for their
-5- firearms qualification, and that he did not possess, use, or have access to firearms
or ammunition. VR, 9:19-53.
Estepp argued that he should be sanctioned but allowed to remain on
diversion. VR, 3:20-30. Via counsel, Estepp conceded that missing his home
visits from P&P while “going to see his girlfriend” was “stupid,” but insisted that
he was not a danger to the community. VR, 3:30-45. Counsel also described
Estepp’s incarceration for 30 days pending his hearing as a “sanction” and a
“wake-up call.” VR, 3:45-4:00, 5:24-5:37. Despite stipulating to the VSR, which
stated that he had failed to make significant progress toward restitution, Estepp
claimed that he had been making regular payments and, at that time, could
reasonably afford the monthly restitution payments to which he had agreed. He
asked the Trial Court to consider his important and “selfless” job as a member of
the military. VR, 4:00-4:25. Finally, he argued that, outside of the failure to be
present for the home visit, he was meeting the requirements of P&P and was an
asset to the community. VR, 4:50-5:20.
The Commonwealth argued that Estepp knowingly left the area of his
supervision, violated the terms of his felony diversion by not only visiting his
girlfriend in Cincinnati but also living at his girlfriend’s house after being twice
denied an ICOTS transfer, and then provided a false address to P&P. VR, 5:50-
6:20. Also, after the testimony of Estepp’s brother, the Commonwealth expressed
-6- concern that, incidental to his employment as a weapons trainer with the U.S.
Army National Guard, Estepp had access to firearms, and this proximity was
expressly prohibited by his felony diversion agreement. VR, 6:28-48.
The Trial Court considered whether Estepp posed a “danger to the
community.” VR, 2024-08-27, 15:25-58. Observing that, as a soldier and national
guardsman, Estepp had been taught that rules are to be followed “to a tee,” the
Trial Court explained that felony diversion was Estepp’s opportunity to
demonstrate that he could follow the rules. VR, 14:24-45 and 15:45-58. Instead,
Estepp had violated the rules by not paying restitution and lying about where he
was living. The Trial Court then addressed Estepp’s claimed justifications for
continuing on diversion:
When your attorney says that you’re not a “danger to the community,” . . . the problem [is] that [if] someone is not willing to tell the truth or follow the rules, what else have they been doing and just haven’t been caught, yet. It is hard to know if you are a danger to the community.
VR, 17:40-18:10. The Trial Court concluded that felony diversion was no longer
appropriate. Id., 19:30-50. The Trial Court then moved to the issue of sentencing
Estepp, who waived any need to obtain a new pre-sentencing investigation report.
VR, 23:44-24:10. Thereafter, the Trial Court accepted the Commonwealth’s
recommendation and, in accordance with Estepp’s guilty plea to TBUT under
$10,000 (Controlled Substance), sentenced him to three years, probated for three
-7- years upon the terms and conditions set by P&P. VR, 24:30-35. The Trial Court
also recalculated Estepp’s monthly restitution payments to $644.71 in order to pay
off the remaining sum within his three-year probationary period. VR, 24:37.
Estepp did not object to the recalculated payments. Id.
The Trial Court issued a written order on August 29, 2024, finding
that Estepp had stipulated to failing to make regularly scheduled restitution
payments, failing to report to P&P as directed, failing to provide his change of
home address, and providing false information to P&P. TR, pp. 61-64. The Trial
Court concluded that Estepp violated the terms and conditions of his felony
diversion and, based on a preponderance of evidence, it “terminated” Estepp’s
felony diversion. Id. Unlike its prior Order continuing diversion, the Trial Court
did not put in writing any findings or conclusions as to whether Estepp posed a
significant danger to his prior victim, Walgreens, or to the community at large, or
whether Estepp was manageable in the community. Id. The Trial Court formally
sentenced Estepp to three years, probated for a period of three years upon terms
and conditions set out by P&P. Id., p. 63. The Trial Court’s written order also
required Estepp to make monthly restitution payments of $644.71 until the total
sum of $26,620.19, to which he had agreed, had been paid in full. Id.
On appeal, Estepp argues that the Trial Court abused its discretion in
voiding his diversion and probating him without making the proper statutory
-8- prerequisite findings for revocation. He also argues that the Trial Court lacked the
authority to raise his restitution payments and erred when it did so without making
an inquiry into his financial circumstances. The Commonwealth asks us to affirm
the Trial Court’s Order, as the preponderance of the evidence supporting the
violations, to which Estepp stipulated, validates that Estepp was a significant
danger to the community and could not be managed on diversion. Further, the
Commonwealth argues that the Trial Court did not err in recomputing Estepp’s
monthly restitution payments.
II. Standard of Review
We review the Trial Court’s Order voiding Estepp’s pretrial diversion
agreement for 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)); see
also Compise v. Commonwealth, 597 S.W.3d 175, 180 (Ky. App. 2020). An abuse
of discretion occurs where “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). As we discuss infra, we must review whether the
Trial Court’s exercise of its discretion is consistent with the statutory criteria
required for the revocation of probation, which are the same prerequisites for a
decision to void a defendant’s felony diversion. Helms v. Commonwealth, 475
S.W.3d. 637, 644 (Ky. App. 2015) (citing Andrews, 448 S.W.3d at 780)
-9- (“Although a trial court’s discretion to manage probation is not ‘upended,’ that
discretion must be ‘exercised consistent with statutory criteria.’”).
III. Analysis
In Helms v. Commonwealth, we explained that “[p]retrial felony
diversion is a unique opportunity for a qualified defendant to enter a guilty plea or
an Alford[2] plea to a qualified felony charge, yet, upon successful completion of
the pretrial diversion period, not ‘be branded with a felony conviction[.]’” 475
S.W.3d at 641 (quoting Tucker v. Commonwealth, 295 S.W.3d 455, 457 (Ky. App.
2009)). Pursuant to KRS 533.258(1), “[i]f the defendant successfully completes
the provisions of the pretrial diversion agreement, the charges against the
defendant shall be listed as ‘dismissed-diverted’ and shall not constitute a criminal
conviction.” Id. Conversely, if a defendant fails to follow the provisions of the
agreement or complete the provisions within the time specified, a Trial Court may
void the diversion part of the agreement, and the Commonwealth “shall decide
whether or not to proceed on the plea of guilty in accordance with the law.” KRS
533.256(4).
The Kentucky General Assembly and this Court have made it clear
that the decision “[w]hether to void a pretrial diversion agreement for a violation of
its terms is to be determined by ‘the same criteria as for the revocation of
2 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
-10- probation, and the defendant shall have the same rights as he or she would if
probation revocation was sought.’” Helms, 475 S.W.3d at 641 (quoting KRS
533.256(2)). “Therefore, while distinguishable in significant ways from probation,
the statutes and regulations applicable to revocation of probation and for voiding a
pretrial diversion agreement are the same.” Id. “[T]he statutory law regarding
probation and other forms of supervised release provided” under KRS 439.310 et
seq. applies to felony diversion. Id. at 641-42. Thus, while a Trial Court retains
the discretion to determine whether to void a defendant’s felony diversion, it is
necessarily constrained by statute.
Specifically, KRS 439.3106(1)(a) sets forth the criteria that a Trial
Court must consider when evaluating whether to revoke an individual’s supervised
release. We have explained those criteria thusly, “to wit, (1) the supervised
individual’s incompliant behavior demonstrates that the individual is a significant
risk to prior victims or the community, and (2) the individual cannot be managed
within the community.” Nantz v. Commonwealth, 728 S.W.3d 804, 811 (Ky. App.
2026). A Trial Court must make both findings before pretrial diversion may be
voided. Compise, 597 S.W.3d at 180 (citing Burnett v. Commonwealth, 538
S.W.3d 322, 324-25 (Ky. App. 2017)). “These findings can be either oral or
written to satisfy both KRS 439.3106(1) and the defendant’s due process rights.”
Commonwealth v. Gilmore, 587 S.W.3d 627, 630 (Ky. 2019).
-11- Here, there is no doubt that Estepp violated the conditions of his
pretrial diversion agreement in numerous, significant, and troubling ways. He did
not meet his obligation to pay restitution, even after the Trial Court gave him a
second chance and despite his prior acknowledgements of his ability and duty to
pay. Even more concerning, Estepp knowingly and surreptitiously left the area of
his supervision. He did not merely visit another jurisdiction; he commenced living
at another residence in another state. All of this misconduct is even more
alarming, given that he had twice been denied an ICOTS transfer. Thus, he knew
by multiple notices from different entities that he was to remain in Kentucky and
be supervised here. He decided to forgo these mandates. He stipulated to the
violations reported by P&P and, even on appeal, does not contest the evidence on
which the Trial Court relied in making the decision to terminate his pretrial
diversion. And this evidence of serial, serious noncompliance can be sufficient to
demonstrate that he is a significant risk to, and unmanageable within, the
community. Had the Trial Court used the requisite language, we might well be
affirming the decision here.
However, the Trial Court failed to make such findings. At his first
termination hearing ten months after entering felony diversion, the Trial Court
issued findings that, despite his failure to make progress toward paying his
restitution, he was “not a threat” and “still manageable in the community.” VR,
-12- 2024-02-27, 17:10; TR, p. 53. However, at the hearing in August 2024, the Trial
Court did not communicate the necessary statutory findings as we have directed in
previous cases. Indeed, the Trial Court expressly stated that it was not sure that
Estepp posed a danger. But then it proceeded to describe Estepp’s misbehavior,
which could clearly constitute a danger.
In Compise, we reviewed a case with factual and procedural histories
very similar to the one sub judice. 597 S.W.3d at 175-79. Compise received
felony diversion after entering an Alford plea to receiving stolen property. Id.
After failing to pay restitution and committing other violations, the Circuit Court
voided the diversion from her felony agreement. Id. at 179. We held that the
Court erred by failing to make explicit findings that Compise was a significant risk
or danger and could not be managed in the community. Id. at 182-83. While the
lower Court there may have intended to reach those conclusions, it never
articulated them and, thus, we had no choice but to vacate and remand. Id.
Similarly, we have held that a Circuit Court erred by neglecting to make a finding
on one but not the other statutory prerequisite. Burnett, 538 S.W.3d at 324-25
(court erred by not making finding that defendant was a significant risk to the
community before voiding pretrial diversion).
The Trial Court’s comments at the hearing on August 27, 2024,
indicated uncertainty about whether Estepp’s failure to follow the rules and his
-13- dishonesty concerning his residence made him a danger to the community. As in
Compise, while the Trial Court may have intended to make a finding that Estepp’s
conduct made him a significant risk to the community – and that appears to be the
case here – it never sufficiently articulated such a finding, and it never
memorialized it in its written Order. Similarly, the Trial Court communicated that
felony diversion was not appropriate but did not find that Estepp was not
manageable within the community.
To be sure, there was ample evidence before the Trial Court to
support conclusions that the conditions of felony diversion alone were not enough
to supervise Estepp within the community, and that a sentence of incarceration was
necessary to make him comply with those conditions. We neither overlook nor
condone Estepp’s cavalier attitude towards complying with conditions with which
he does not agree. The requirement of living in the Commonwealth and submitting
to supervision here is the most basic component of diversion. Following orders is
another. Estepp did neither; despite being told and warned repeatedly to remain in
the jurisdiction, he simply and steadfastly refused.
But the Trial Court articulated no such contemporaneous finding and,
once again, did not memorialize in its final written Order any finding that Estepp
was unmanageable within the community under felony diversion – even though it
could have based upon the evidence before it. The crime itself here – stealing 120
-14- doses of narcotics from a pharmacy – posed a danger to the community at large. In
hindsight, diversion was questionable at the outset. And the Trial Court initially
expressed reticence. Estepp showed his unmanageability early and often due to his
obstinate refusal to submit to supervision in Kentucky. We acknowledge that it is
somewhat obvious that Estepp posed a danger and was unmanageable on his own.
The Trial Court could have even decided to send Estepp to prison instead of giving
him another chance at supervision while on probation versus diversion.
However, to do so, the Trial Court was required to making the
corresponding findings. And we are bound by legal precedent, just as the Trial
Court is. Every case interpreting the statute has said Trial Courts must use the
required terminology. Simply put, the Trial Court must have explicitly said that
Estepp posed a significant risk or danger to the community and that he was
unmanageable in the community. Here, the Trial Court did not use the mandated
terminology. While not magic words, all case law holds that the language is
requisite. Here, no matter how justified the Trial Court’s conclusion could have
been, it was not explained. In the face of such silence at the trial level, the
Appellate Courts cannot supply rationales, no matter how evident such reasoning
appears, as we operate with the benefit of hindsight, and the Trial Court does not.
In Compise and Burnett, we clearly established that a Trial Court must
explicitly and unequivocally communicate the prerequisites set forth in KRS
-15- 439.3106(1)(a) prior to voiding a criminal defendant’s felony diversion. In this
instance, the Trial Court abused its discretion when it failed to do so. Therefore,
we vacate and remand for the Trial Court to consider whether Estepp’s failure to
abide by the conditions of his pretrial diversion agreement constituted a significant
risk to his prior victim or the community at large and whether he could be managed
in the community, before deciding anew whether his felony diversion should be
voided. The Trial Court is free to stand by its prior conclusions; we are not
compelling the result here. However, the Trial Court, and not this Court, must
state with specificity the statutory factors for removal from diversion and
sentencing. The Trial Court retains the discretion to determine whether it desires
another hearing. We are not ordering another hearing. The Trial Court may decide
the matter solely on the evidence that it has already heard as of the close of the
hearing at issue. However, if it does conduct another hearing, an inquiry into the
exact nature of Estepp’s employment as a firearms instructor would be warranted.
Even defendants on diversion who have pleaded guilty to a felony are prohibited
from possessing a firearm directly or indirectly. Clearly, Estepp is not allowed to
be on, or proximate to, a shooting range, weaponry, or ammunition.
Having vacated the Trial Court’s Order, there is no need to consider
Estepp’s unpreserved claim – to which he did not object before the Trial Court or
request a hearing – regarding the amount of his monthly restitution payments. On
-16- remand, the Trial Court may again consider the manner by which to address
Estepp’s failure to make progress on his agreement to pay restitution, including
making any inquiries regarding his financial status, and Estepp is free to make and
preserve any objection.
IV. Conclusion
For the foregoing reasons, the Campbell Circuit Court’s Order is
vacated and remanded for further proceedings. While not required to conduct
another hearing, or even to change its conclusion, the Trial Court is compelled to
make the requisite findings to support its decision.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Sarah Dickerson Dailey Russell Coleman Substitution by: Attorney General of Kentucky Erin Hoffman Yang Department of Public Advocacy Ken W. Riggs Frankfort, Kentucky Assistant Attorney General Frankfort, Kentucky
-17-