Kentucky Cases March 06, 2020: Tabor v. Commonwealth

Case Description

NOT TO BE PUBLISHED

APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE DANIEL J. ZALLA, JUDGE
ACTION NO. 18-CR-00382

OPINION
AFFIRMING

BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND COMBS, JUDGES.

CLAYTON, CHIEF JUDGE: Brian Tabor ("Tabor") appeals from a judgment and sentence on open plea (the "Judgment") of the Campbell Circuit Court. Upon our review of the record and applicable law, we affirm.

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The Campbell County Grand Jury indicted Tabor for first-degree possession of a controlled substance, namely methamphetamine, in March of 2018. Tabor failed to appear in court for his arraignment and the trial court issued a bench warrant. Tabor was eventually taken into custody and, in July of 2018, appeared before the trial court, at which time the court set a bond of $500. The trial court further ordered Tabor to report to the pre-trial services office should Tabor post the bond.

After Tabor posted bond and was released from custody, he failed to report to pre-trial services and was found to be in violation of his conditional release. Based on the foregoing, another bench warrant was issued by the trial court in August of 2018. He was again taken into custody, and again released on his own recognizance in November of 2018 to complete inpatient treatment with the Salvation Army.

By the end of November of 2018, Tabor had violated his conditional release due to discharge from the Salvation Army's residential treatment services for non-compliance and theft. Tabor had also failed to contact pre-trial services as required. The trial court issued another bench warrant for Tabor's arrest, and Tabor was again taken into custody in December of 2018.

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Thereafter, on March 5, 2019, Tabor entered an open guilty plea to the foregoing charge. On April 16, 2019, the court conducted a sentencing hearing, at which the Commonwealth introduced evidence that Tabor had been placed on federal probation for a gun charge in 2008. Tabor's federal probation was revoked, with Tabor ultimately serving fourteen months' imprisonment. The Commonwealth further noted Tabor's four prior felony charges, including two counts of burglary, one count of forgery, and one count of theft of firearms, as well as Tabor's consistent failure to appear before the court in the current case and to report to pre-trial services as ordered by the court.

At the conclusion of the hearing, the trial court stated as follows:

The court has reviewed the presentence investigation report, has considered your all's arguments . . . . While the court has empathy towards the defendant, this court would be remiss if it did not take into consideration his extensive and long prior criminal history, and that is long and some of the charges are serious. And, it goes back to 1988, all the way to the current time, and the court makes a finding based upon that record, based upon the nature and circumstances of the case before the court, and this court having taken into consideration the defendant's risk and needs assessment and the nature and circumstances of the crime immediately before the court, and his history as contained in the presentence investigation report and his character, the court does make a finding that this defendant is in need of correctional treatment that can be provided most effectively by his commitment to a correctional institution. The court further finds that under this

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chapter of KRS 533.010 that a disposition of probation would unduly depreciate the seriousness of the crime before the court and the defendant's prior criminal history. So based upon those findings, the Court sentences the defendant to three years' imprisonment with the Department of Corrections[.]

In the Judgment, which was entered on April 29, 2019, the trial court recited as follows:

Having given due consideration to the argument from Counsel regarding an appropriate sentence for Defendant, the PSI, the criminal history of the Defendant, the nature and circumstances of the crime, and the history, character and condition of the Defendant, the Court finds that the Defendant is not a good candidate for probation or conditional discharge because under KRS 533.010 disposition under said chapter will unduly depreciate the seriousness of the Defendant's crime(s) before this Court.

On May 15, 2019, Tabor, by counsel, filed a notice of appeal to this Court. On appeal, Tabor argues that the trial court committed reversible error and that it abused its discretion when it imposed the maximum penalty of three years' imprisonment and refused to grant probation without making the findings required under KRS 218A.1415 and KRS 218A.010(44).

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a. Standard of Review

While a guilty plea generally waives the majority of a criminal defendant's appealable issues, "sentencing issues" remain appealable by such defendant. Windsor v . Commonwealth , 250 S.W.3d 306, 307 (Ky. 2008) (footnotes omitted). Under Kentucky law, the relevant "sentencing issues" comprise claims "that a sentencing decision is contrary to statute . . . or was made without fully considering what sentencing options were allowed by statute[.]" Grigsby v . Commonwealth , 302 S.W.3d 52, 54 (Ky. 2010) (internal citations omitted).

A trial court has wide latitude in its decision to grant or deny probation, however, as such decision is "wholly within the discretion of the trial court." Burke v . Commonwealth , 506 S.W.3d 307, 314 (Ky. 2016) (citations omitted). As a result, an appellate court reviews a trial court's decision regarding probation solely for an abuse of discretion. Turner v . Commonwealth , 914 S.W.2d 343, 347-48 (Ky. 1996). The test by which a reviewing court weighs abuse of discretion is "whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Arnett v . Commonwealth , 366 S.W.3d 486, 489 (Ky. App. 2011) (citations omitted).

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b. Discussion

Although the decision to grant or deny probation is within the discretion of the trial court, Kentucky statutes require that, before a trial court imposes a sentence in a felony case, there are certain factors that it must consider. One such statute, KRS 533.010, states in applicable part:

(1) Any person who has been convicted of a crime and who has not been sentenced to death may be sentenced to probation[.]

(2) Before imposition of a sentence of imprisonment, the court shall consider probation[.] Unless the defendant is a violent felon as defined in KRS 439.3401 or a statute prohibits probation, shock probation, or conditional discharge, after due consideration of the defendant's risk and needs assessment, nature and circumstances of the crime, and the history, character, and condition of the defendant, probation . . . shall be granted, unless the court is of the opinion that imprisonment is necessary for protection of the public because:

(a) There is substantial risk that during a period of probation or conditional discharge the defendant will commit another crime;

(b) The defendant is in need of correctional treatment that can be provided most effectively by his commitment to a correctional institution; or

(c) A disposition under this chapter will unduly depreciate the seriousness of the defendant's crime.

(3) In the event the court determines that probation is not appropriate after due consideration of the defendant's

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risk and needs assessment, nature and circumstances of the crime, and the history, character, and condition of the defendant, probation with an alternative sentencing plan shall be granted unless the court is of the opinion that imprisonment is necessary for the protection of the public because:

(a) There is a likelihood that during a period of probation with an alternative sentencing plan or conditional discharge the defendant will commit a Class D or Class C felony or a substantial risk that the defendant will commit a Class B or Class A felony;

(b) The defendant is in need of correctional treatment that can be provided most effectively by commitment to a correctional institution; or

(c) A disposition under this chapter will unduly depreciate the seriousness of the defendant's crime.

Additionally, KRS 218A.1415 - a statute governing the penalties for the possession of controlled substances in the first degree - provides in relevant part:

(2) Possession of a controlled substance in the first degree is a Class D felony subject to the following provisions:

(a) The maximum term of incarceration shall be no greater than three (3) years, notwithstanding KRS Chapter 532;

. . .

(d) If a person does not enter a deferred prosecution program for his or her first or second offense, he or she shall be subject to a period of presumptive probation, unless a court determines

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the defendant is not eligible for presumptive probation as defined in KRS 218A.010.

"Presumptive probation" is defined in KRS 218A.010(44) as:

[A] sentence of probation not to exceed the maximum term specified for the offense, subject to conditions otherwise authorized by law, that is presumed to be the appropriate sentence for certain offenses designated in this chapter, notwithstanding contrary provisions of KRS Chapter 533. That presumption shall only be overcome by a finding on the record by the sentencing court of substantial and compelling reasons why the defendant cannot be safely and effectively supervised in the community , is not amenable to community-based treatment , or poses a significant risk to public safety [.]

(Emphasis added).

On appeal, Tabor submits that, although the trial court considered the relevant portions of KRS 533.010(2)-(3), it failed to consider Tabor's due process rights as well as make explicit findings regarding the requirements of KRS 218A.1415(2)(d) and KRS 218A.010(44) when it sentenced him to the maximum period of incarceration.

Recently, the Kentucky Supreme Court examined the sufficiency of the findings made by a trial court in a probation revocation hearing under both specific statutory criteria and due process considerations. Commonwealth v . Gilmore , 587 S.W.3d 627 (Ky. 2019). The trial judge in Gilmore made oral and written findings regarding the revocation of a defendant's probation. Id . at 628-29. The defendant argued that the trial court's oral findings did not address the proper

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statutory language. Id . at 630. The Supreme Court noted that, "[w]hile not specifically reiterating the exact language of [the applicable statute], the trial court's oral findings explain[ed] the reasons" for its decision. In particular, the Supreme Court endorsed the idea that a reviewing court "look to both the written and oral findings in conjunction with one another and not separately in a vacuum" to determine whether a sentencing court has met both statutory criteria and due process requirements. Id .

In this case, we note that both the definition of "presumptive probation" under KRS 218A.010(44) and the statutory criteria contained in KRS 533.010 require the court to consider substantially the same factors. For example, pursuant to KRS 533.010(2)(b), a court may impose a prison sentence if it finds that "[t]he defendant is in need of correctional treatment that can be provided most effectively by his commitment to a correctional institution[.]" Similarly, the presumption of probation under KRS 218A.010(44) may be overcome by a finding on the record that the defendant "is not amenable to community-based treatment[.]"

Here, when looking at the trial court's oral and written findings in conjunction with one another, the trial court made specific findings from the bench regarding Tabor's case that were supported by the evidence of record, including Tabor's extensive prior criminal history dating back to 1988 and his presentence

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investigation report. Specifically, the court stated that it "does make a finding that this defendant is in need of correctional treatment that can be provided most effectively by his commitment to a correctional institution." The foregoing finding is compatible with, and directly corresponds to, a finding that Tabor "is not amenable to community-based treatment" - a finding which, on its own, overcomes "presumptive probation" as defined in KRS 218A.010(44). Further, in making its oral findings, the trial court stated that it had considered the nature and circumstances of the crime immediately before the court, and Tabor's risk and needs assessment. Therefore, we find that, under Gilmore , the court in this case made oral findings that comply with all statutory guidelines and due process considerations.

Tabor next argues that the trial court abused its discretion when it imposed the maximum sentence, as diversion and presumptive probation are the preferred alternative sentences for Tabor's conviction. As previously discussed, however, given the trial court's findings as to Tabor's extensive criminal record, his apparent inability to benefit from his experience with the criminal justice system, and other factors related to Tabor's "history, character[,] and condition" and his "need of correctional treatment that can be provided most effectively by his commitment to a correctional institution," there was nothing arbitrary, unreasonable, or unfair in the trial court's decision to impose the sentence it did.

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KRS 533.010(2)(b). Therefore, we perceive no abuse of the trial court's discretion.

Based on the foregoing, we affirm the judgment of the Campbell Circuit Court.

CALDWELL, JUDGE, CONCURS.

COMBS, JUDGE, DISSENTS AND FILES SEPARATE OPINION. COMBS, JUDGE, DISSENTING: I respectfully dissent. The majority opinion relies on Commonwealth v . Gilmore , 587 S.W.3d 627 (Ky. 2019), a case which appears to relax the stringent criteria underlying probation eligibility set forth by Commonwealth v . Andrews , 448 S.W.3d 773 (Ky. 2014) (construing KRS 439.3106(1)). Gilmore impliedly retreats a bit from the meticulous insistence on particularized findings articulated by Andrews .

The majority opinion is also persuaded that KRS 218A.010 and KRS 533.010 are virtually interchangeable since both statutes require a court to consider substantially similar factors in assessing whether or not to grant probation. In the case before us, the trial court considered only KRS 533.010, the general statute pertaining to probation. However, Tabor argues on appeal that because he was charged under KRS chapter 218A, the more specific - and more restrictive - guidelines of that statutory scheme as to his probation eligibility should govern. I agree.

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In its judgment and sentence entered on April 29, 2019, the trial court recited as follows:

Having given due consideration to the argument from Counsel regarding an appropriate sentence for Defendant, the PSI, the criminal history of the Defendant, the nature and circumstances of the crime, and the history, character and condition of the Defendant, the Court finds that the Defendant is not a good candidate for probation or conditional discharge because under KRS 533.010 disposition under said chapter will unduly depreciate the seriousness of the Defendant's crime(s) before this Court.

The court did not allude to - much less consider - the directives of KRS Chapter 218A.

On May 15, 2019, Tabor, by counsel, filed a notice of appeal to this Court. On appeal, Tabor argues that the trial court committed reversible error and that it abused its discretion when it refused to grant probation without making the findings required by KRS 218A.1415; and KRS 218A.010(44) - and instead imposed the maximum penalty.

In relevant part, KRS 218A.1415 provides:

(2) Possession of a controlled substance in the first degree is a Class D felony subject to the following provisions:

(a) The maximum term of incarceration shall be no greater than three (3) years, notwithstanding KRS Chapter 532;

(b) For a person's first or second offense under this section, he or she may be subject to a period of:

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1. Deferred prosecution pursuant to KRS 218A.1415; or

2. Presumptive probation;

(c) Deferred prosecution under paragraph (b) of this subsection shall be the preferred alternative for a first offense; and

(d) If a person does not enter a deferred prosecution program for his or her first or second offense, he or she shall be subject to a period of presumptive probation, unless a court determines the defendant is not eligible for presumptive probation as defined in KRS 218A.010.

KRS 218A.010(44) provides as follows:

"Presumptive probation" means a sentence of probation not to exceed the maximum term specified for the offense, subject to conditions otherwise authorized by law, that is presumed to be the appropriate sentence for certain offenses designated in this chapter, notwithstanding contrary provisions of KRS Chapter 533. That presumption shall only be overcome by a finding on the record by the sentencing court of substantial and compelling reasons why the defendant cannot be safely and effectively supervised in the community, is not amenable to community-based treatment, or poses a significant risk to public safety[.]

(Emphases added).

Tabor submits that although the trial court considered relevant portions of KRS 533.010(2)-(3), it failed to consider the additional requirements of KRS 218A.1415(2)(d) and KRS 218A.010(44).

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Another panel of this Court addressed a similar issue in Jones v . Commonwealth , No. 2018-CA-001431-MR, 2019 WL 4565229 (Ky. App. Sept. 20, 2019). In Jones , the trial court stated during sentencing that it was not granting probation because Jones failed to contact pre-trial services when he was released on bond. The court's written judgment and sentence provided as follows:

Having given due consideration to the written report by the Division of Probation and Parole, and the nature and circumstances of the crime, and to the history, character and condition of the defendant, the court is of the opinion that imprisonment is necessary for the protection of the public because probation, probation with an alternative sentencing plan, or conditional discharge would unduly depreciate the seriousness of the defendant's crime.

Id . at *2.

This Court reversed and remanded, explaining that:

While the decision as to whether to grant probation is within the discretion of the trial court, Turner v . Commonwealth , 914 S.W.2d 343, 347 (Ky. 1996), that discretion must be exercised consistent with the relevant statutory criteria. There is no evidence in the record that indicates the trial court considered the factors that would overcome the presumption of probation in this case. While it may be true that Appellant should not be granted probation, the trial court must indicate on the record that it considered the KRS 218A.010(44) factors.

(Emphases added).

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Jones is more congruent to the factual scenario of the case before us than is Gilmore , supra , upon which the majority opinion principally relies. Its mandatory language is unambiguous and inescapable.

It may be true that Tabor should not be granted probation. However, in making that determination, I believe that the trial court must consider the KRS 218A.010(44) factors and provide on-the-record findings as required by the statute sufficient to apprise an appellate court of the basis for its decision.

Therefore, I would vacate the trial court's judgment entered on April 29, 2019, and remand for additional findings.

BRIEFS FOR APPELLANT:

Steven Nathan Goens
Frankfort, Kentucky

BRIEF FOR APPELLEE:

Andy Beshear
Attorney General

Mark D. Barry
Assistant Attorney General
Frankfort, Kentucky