Dillard Akers v. Commonwealth of Kentucky ( 2021 )

RENDERED: APRIL 16, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1051-MR
DILLARD AKERS APPELLANT
APPEAL FROM MCCREARY CIRCUIT COURT
v. HONORABLE DANIEL BALLOU, JUDGE
ACTION NO. 19-CR-00044
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES.
KRAMER, JUDGE: Dillard Akers appeals from an order of the McCreary Circuit
Court revoking his probation and imposing a sentence of three years’ incarceration.
We affirm.
Akers entered a guilty plea to theft by deception ($500.00 or more) in
October 2019. The circuit court sentenced Akers in December 2019, and pursuant
to the plea agreement, placed him on probation for a period of three years. As
conditions of probation, Akers was required to report in-person to his probation
officer at least once per month; comply with the directions of his probation officer;
and remain within the area/county approved by the probation officer, among
numerous other conditions.
On April 28, 2020, the Commonwealth moved to revoke Akers’
probation, stating that Akers had failed to report to his probation officer, Leisa
Vanhook, as directed; failed to cooperate with Vanhook; provided false
information; traveled outside his area of supervision without permission; and
absconded from supervision. A report and affidavit from Vanhook was filed with
the circuit court. The circuit court issued an arrest warrant, and Akers was
apprehended on or about May 2, 2020. The Commonwealth filed a second motion
to revoke Akers’ probation on the same day, stating that Akers harassed or
threatened Vanhook in telephone calls after his arrest. The circuit court held a
revocation hearing on July 21, 2020, and granted the Commonwealth’s motion to
revoke Akers’ probation. This appeal followed.
“The appellate standard of review of a decision to revoke a
defendant’s probation is whether the trial court abused its discretion. Lucas v.
Commonwealth, 258 S.W.3d 806, 807 (Ky. App. 2008). To amount to an abuse of
discretion, the trial court’s decision must be ‘arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.’ Clark v. Commonwealth, 223 S.W.3d 90,
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95 (Ky. 2007), quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.
1999).” Blankenship v. Commonwealth, 494 S.W.3d 506, 508 (Ky. App. 2015).
The scope of Akers’ argument is very narrow. He asserts only that the
circuit court made insufficient findings that do not comply with KRS1 439.3106.
We disagree.
KRS 439.3106 states, in relevant part,
(1) 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[.]
The Kentucky Supreme Court has held that KRS 439.3106(1)
“requires trial courts 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. Andrews, 448
S.W.3d 773, 780 (Ky. 2014) (emphasis added). The same provision also mandates
that the trial court must “find that the probationer’s failure to abide by a condition
1
Kentucky Revised Statute.
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of supervision constitutes a significant risk to prior victims or the community, and
that the probationer cannot be managed in the community before probation may be
revoked.” Id. at 781 (emphasis added).
In the year following the Andrews decision, this Court provided
further clarification regarding the findings required by KRS 439.3106. In McClure
v. Commonwealth, 457 S.W.3d 728 (Ky. App. 2015), the defendant argued the
circuit court’s finding that he posed a significant risk was an abuse of discretion
because the court offered no explanation as to why. This Court disagreed, holding,
[t]he statute requires a trial court to consider “whether a
probationer’s failure to abide by a condition poses a
significant risk to prior victims or the community at
large.” Andrews at 776. Neither KRS 439.3106 nor
Andrews require anything more than a finding to this
effect supported by the evidence of record. The trial
court complied with this requirement and it owed
McClure no further explanation.
Id. at 733.
In the instant action, the circuit court found,
that while on probation [Akers] violated the terms and/or
conditions detailed in the Commonwealth’s Motion to
Revoke, which is contained within the file, and such acts
and conduct being in clear and open violation of the
terms of Probation aforementioned, and the Court having
considered all lesser penalties as required under KRS
439.3106, and further finds that the violations constitute
a significant risk to prior victims, the community at large,
and that [Akers] cannot be appropriately managed in the
community[.]
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The evidence of record2 supports the circuit court’s findings. Akers
was sentenced to probation in December 2019. On January 3, 2020, he reported as
directed, and again on February 3, 2020. He was scheduled to report again on
February 6, 2020, but called Vanhook on February 10, 2020, stating he was at the
hospital with possibly two broken ribs. Hospital records submitted into evidence
show that Akers was seen on January 15, 2020, regarding a shoulder injury and
again on February 7, 2020 (i.e., the day after his scheduled report date and three
days before he told Vanhook he was in the hospital). Per the records dated
February 7, 2020, Akers did not have broken ribs.
Akers failed to report as scheduled on March 3, 2020, but reported on
March 6, 2020, for the last time. On April 6, 2020, he began what can only be
described as a pattern of dodging his reporting requirement by falsely informing
Vanhook that he believed he had COVID-19. Vanhook testified Akers called her
at 2:00 a.m. on the morning of April 5, 2020, and was possibly under the influence,
which would have required Akers to undergo a drug test. When contact was made
again during normal business hours, Akers indicated he had a fever, cough, and
trouble breathing. Days went by and Akers gave numerous excuses as to why he
2
The evidence contained in the record before us includes testimony of Vanhook; the violation of
supervision report (Vanhook acknowledged she filed the report contained in the court record and
testified as to its contents); testimony of Akers; and various exhibits entered into evidence at the
revocation hearing.
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was unable to get tested for COVID-19. Despite the fact Akers claimed illness, he
traveled without permission to Mt. Sterling, Kentucky, and spent the night there.
Vanhook believed Akers falsely reported he believed he had COVID-19 to avoid
drug testing stemming from his call to her at 2:00 a.m. on April 5, 2020.
Ten days after he first reported illness to Vanhook (i.e., on April 16,
2020), Akers was finally tested for COVID-19. However, he refused to answer
calls from Vanhook about his test results. Akers’ results were negative. Vanhook
testified that, contrary to statements in text messages submitted to the court, he did
not have a fever when he arrived at the clinic for testing.3
On April 17, 2020, a door hanger was left at Akers’ residence,
instructing him to contact Vanhook. He failed to do so, and he failed to return
Vanhook’s calls. Also, in April 2020, Akers was charged with unauthorized use of
a motor vehicle in Boyle County. He was arrested on a warrant for this offense on
April 20, 2020. When Akers was arrested on the probation violation warrant on
May 2, 2020, both he and his mother called Vanhook multiple times after 10:00
p.m. to argue that he had not had any probation violations. Vanhook felt harassed
and threatened by the calls.
3
Akers signed a release of information at the clinic so that his COVID-19 test results could be
reported to Vanhook.
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Despite Akers’ arguments to the contrary, the circuit court was not
required to provide any further explanation beyond its finding that his probation
violations constituted a significant risk to himself or the community at large and
that he could not be appropriately managed in the community. McClure, 457
S.W.3d at 733. The circuit court’s decision is supported by the evidence of record.
Moreover, in the cases cited by Akers to this Court, the circuit court was reversed
only when it did not include the specific language required by KRS 439.3106(1)
and Andrews, supra, or when the findings were not supported by a preponderance
of evidence contained in the record.4, 5 That is not the case here.
Accordingly, the order of the McCreary Circuit Court revoking Akers’
probation is affirmed.
ALL CONCUR.
4
See, e.g., Helms v. Commonwealth, 475 S.W.3d 637 (Ky. App. 2015).
5
In the appendix of his brief to this Court, Akers attached an order revoking probation from
another unrelated probation revocation of a different defendant in McCreary Circuit Court. He
requests we take judicial notice of the order. However, because it is not part of the record, we
shall not consider it. See Kentucky Rule of Civil Procedure (CR) 76.12(4)(c)(vii).
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Robert C. Yang Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Aspen Roberts
Assistant Attorney General
Frankfort, Kentucky
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