Travis Lay v. Commonwealth of Kentucky ( 2023 )

RENDERED: FEBRUARY 24, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0791-MR
TRAVIS LAY APPELLANT
APPEAL FROM LAWRENCE CIRCUIT COURT
v. HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NO. 19-CR-00048
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: THOMPSON, CHIEF JUDGE; DIXON AND LAMBERT, JUDGES.
LAMBERT, JUDGE: Travis Lay appeals from the Lawrence Circuit Court’s order
revoking his probation and imposing the underlying sentence of ten years’
imprisonment. We affirm.
The circuit court’s order, dated May 28, 2021 (and entered into the
record on June 2, 2021), contains the facts and procedural history of this case, and
we repeat that recitation here:
The Commonwealth called as its only Witness
Billy Slone, the Probation & Parole Officer. He testified
the defendant was advised of the conditions of probation
on or about September 16, 2019. Prior to that time, but
after a judgment granting probation was entered, the
defendant was charged in a misdemeanor case for
misdemeanor theft, that occurring on August 25, 2019.
Two days later, he was indicted in case 19-CR-00139 for
theft, burglary, and persistent felony offender. On
September 18, 2019, he signed an admission for the use
of suboxone without a prescription. He was scheduled to
see a clinician in October, 2019, but missed that
appointment and missed another appointment in
September 2019. On 10-24-2019 he admitted the use of
suboxone and was arrested on an indictment warrant. On
10-25-2019, he pleaded guilty to the misdemeanor charge
and was sentenced to ninety days in jail, to serve thirty
days. He was released from jail on January 23, 2020, and
was told to report to Probation and Parole. He failed to
report and never made any contact with the Probation and
Parole. On 1-31-2020 he was arrested by the Ashland
Police Department on a felony case for third degree
burglary. He signed at or near that time an admission
form for using methamphetamines. He was convicted on
the felony charge in Boyd County on July 13, 2020, and
sentenced to one year, but his sentence was commuted by
the Governor. He was released from custody in
September 2020 and was requested to make contact with
Probation and Parole but did not do so. The homeowner
where the defendant was supposed to be residing made
contact with Probation and Parole on 10-7-2020 to state
that the defendant had left the home and he did not know
his whereabouts. The Probation and Parole Officer was
of the opinion the defendant could not be supervised in
the community as a whole and that he was a danger to
himself and others. He testified that the defendant had
not complied in any regard with the requirements of
Probation and Parole.
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A review of the record indicates the defendant was
rearraigned on the charges in this case on July 2, 2019.
He was released on personal recognizance on July 3,
2019. A warrant was issued for his arrest on July 23rd
for failure to report for an office visit on July 2, 2019,
and July 16, 2019. On August 12, 2019, the defendant
was sentenced to five years for third degree burglary, and
that was enhanced to ten years for a second-degree
persistent felony offender charge. That was probated for
a period of five years at supervised probation.
A review of the defendant’s pre-sentence
investigation report reveals that he was sentenced to one
year for possession of controlled substance on 3-26-2017.
He was sentenced on another count of possession of
controlled substance first degree, on 4-21-2017, and on
7-26-17 was sentenced to 18 months for possession of
controlled substance and second-degree escape, as well
as a number of misdemeanor counts.
On appeal, Lay argues that the circuit court erred in failing to follow
the dictates of Kentucky Revised Statute (KRS) 439.3106, which provides, in
pertinent 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; or
(b) Sanctions other than revocation and
incarceration as appropriate to the
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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.
We are given further guidance in our analysis by Kentucky case law. “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)). The circuit court’s “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) (citation omitted).
We have examined the record in its entirety, including the videotaped
sessions over the course of Lay’s conviction, sentencing, and probation revocation
hearings. While the trial court’s order may not precisely parallel the language of
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KRS 439.3106, we conclude that the trial court’s order sets out all findings
required by the statute. See Hall v. Commonwealth, 566 S.W.3d 578, 580-81 (Ky.
App. 2018). Here, the circuit court reasoned:
The Court finds that the defendant has violated the
terms and conditions of his probation in a number of
ways. First, the defendant has been found guilty of a
misdemeanor charge that occurred after probation and
has been found guilty of a felony charge that occurred
after probation. Secondly, the Court finds that the
defendant has violated the terms and conditions of his
probation by admitting the use of suboxone on 9-16-
2019, and 10-22-2019, as well as an admission of using
methamphetamines on 1-31-2020. The Court finds that
the defendant has further violated the terms and
conditions of his probation by failing to report to
Probation and Parole on a number of occasions and by
failing to maintain an address that could be verified by
Probation and Parole and had therefore absconded.
Based on these findings, the Court concludes that
the defendant cannot be properly supervised in the
community as a whole. The Probation and Parole Officer
testified that the defendant had done almost nothing that
had been required of him by Probation and Parole. For
probation to be successful, a defendant must cooperate
with the Department of Probation and Parole and follow
their guidelines and directives. The Court finds that
defendant has completely failed in his requirement of
cooperating with Probation and Parole, and that failure
makes it impossible for him to be properly supervised in
the community as a whole.
With respect to the second issue relating to
probation revocation, the Court finds that the defendant
clearly has a significant substance abuse issue. Prior to
this case the defendant had three cases in which he was
found guilty [of] felony level possession of controlled
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substances. During the course of probation in this case,
the defendant has admitted using illegal substances on
three separate occasions. In addition, the defendant has
committed two offenses for which he has been found
guilty while on probation. The Court therefore finds and
concludes that the defendant, because of his drug use and
propensity to commit crimes, is a threat and danger to
himself and to the community as a whole.
“The Commonwealth’s evidence was more than sufficient to support revocation of
probation in this case. Since the trial court’s findings were supported by
substantial evidence, we find no abuse of discretion in revoking [his] probation.”
Hall, 566 S.W.3d at 581.
We are not persuaded by Lay’s additional arguments that the evidence
did not support the circuit court’s findings and that graduated sanctions were not
considered. Id.; Gilmore, supra.
The circuit court committed no error in revoking Lay’s probation and
sentencing him consistently with his 2019 guilty plea. The judgment of the
Lawrence Circuit Court is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Roy A. Durham, II Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky
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