Roy Smothers v. Commonwealth of Kentucky ( 2023 )

RENDERED: FEBRUARY 24, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0209-MR
ROY SMOTHERS APPELLANT
APPEAL FROM MARION CIRCUIT COURT
v. HONORABLE KAELIN G. REED, JUDGE
ACTION NOS. 19-CR-00034, 19-CR-00061, AND 20-CR-00003
COMMONWEALTH OF KENTUCKY APPELLEE
AND
NO. 2022-CA-0210-MR
ROY SMOTHERS APPELLANT
APPEAL FROM MARION CIRCUIT COURT
v. HONORABLE KAELIN G. REED, JUDGE
ACTION NO. 21-CR-00068
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: THOMPSON, CHIEF JUDGE; CETRULO AND ECKERLE,
JUDGES.
THOMPSON, CHIEF JUDGE: In this consolidated appeal, Roy Smothers appeals
from the revocation of his probation. He argues that he did not pose a significant
danger to the community and that his probation should not have been revoked. We
find no error and affirm.
FACTS AND PROCEDURAL HISTORY
In case No. 19-CR-00034, Appellant pleaded guilty to felony theft by
unlawful taking.1 He received a sentence of five years and was ordered to pay
$7,875 in restitution. In case No. 19-CR-00061, Appellant pleaded guilty to felony
theft by unlawful taking and third-degree criminal trespass.2 He received a
sentence of two years and was ordered to pay $1,890 in restitution. He was
granted probation in both cases on December 19, 2019.
In case No. 20-CR-00003, Appellant pleaded guilty to first-degree
criminal mischief3 and misdemeanor theft by unlawful taking.4 He received a
sentence of one year. In case No. 21-CR-00068, Appellant pleaded guilty to
1
Kentucky Revised Statutes (KRS) 514.030.
2
KRS 511.080.
3
KRS 512.020.
4
KRS 514.030.
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promoting contraband in the first degree.5 He received a sentence of one year.
Appellant was granted probation for these convictions on June 17, 2021.
During 2020, Appellant violated the terms of his probation on
multiple occasions. In January he admitted to the use of methamphetamine and
marijuana. In March he failed to complete drug treatment and failed to pay
restitution. In April he failed to complete drug treatment and absconded
from supervision. In September he failed to complete drug treatment and
absconded from supervision.
In 2021, while still on probation, Appellant was charged with a felony
and misdemeanor charge, which he ultimately pleaded guilty to as discussed
previously. On September 8, 2021, Appellant admitted to using methamphetamine
and marijuana. Despite numerous probation violations, Appellant’s probation was
not revoked. Instead, he was repeatedly ordered to undergo drug treatment.
On September 14, 2021, Appellant was ordered to undergo inpatient
drug treatment. Appellant was informed that when a spot became available at the
treatment facility Appellant would be contacted by his probation officer. Two days
later a spot at the treatment facility became available and Appellant’s probation
officer attempted to contact Appellant. The officer was unsuccessful.
5
KRS 520.050.
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Appellant’s probation officer was able to contact Appellant on
September 20, 2021. The officer informed Appellant that he needed to report to
the treatment facility on September 22, 2021. Appellant did not report to the
facility. In early October the probation officer attempted to get Appellant to report
to the probation offices; however, he was unsuccessful. A bench warrant was
issued for Appellant for failing to attend drug treatment and for absconding from
supervision. The probation officer had no further contact with Appellant until
Appellant’s arrest in December of 2021.
A probation revocation hearing was held in January of 2022.
Appellant and his probation officer both testified. On February 3, 2022, the trial
court entered an order revoking Appellant’s probation. The trial court found that
Appellant absconded from supervision and failed to attend his drug treatment
program. It also found that Appellant’s failure to abide by the terms of his
probation presented a significant risk to the community. The court found it
significant that Appellant has been unable to fully comply with his probation since
it began in December of 2019. The court believed it would be fruitless to add more
accountability measures to Appellant’s probation and that Appellant could not be
adequately managed in the community. This appeal followed.
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ANALYSIS
Appellant argues on appeal that the trial court erred in revoking his
probation because he did not pose a significant risk to the community even though
he violated his probation requirements.
KRS 439.3106 states:
(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 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 review a probation revocation claim for abuse of discretion. Commonwealth v.
Gilmore, 587 S.W.3d 627, 629 (Ky. 2019).
We do not believe the trial court abused its discretion when it revoked
Appellant’s probation. Appellant had been on probation for two years and had
been unable to follow the probation requirements. Appellant failed to complete
multiple drug treatment programs, absconded from supervision multiple times, and
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admitted to continued drug use. Appellant also received new felony and
misdemeanor convictions during his probation. The trial court was very lenient
with Appellant and gave him multiple chances to complete his probation.
We find support for our decision in the cases of McClure v.
Commonwealth, 457 S.W.3d 728 (Ky. App. 2015), and New v. Commonwealth,
598 S.W.3d 88 (Ky. App. 2019). In McClure, a previous panel of this Court held
that continued drug use and attempts to thwart proper probation supervision6
constituted a significant risk to the community. McClure, 457 S.W.3d at 733. In
New, this Court held that continued drug use and providing falsified paperwork to
a drug court constituted a significant risk to the community. New, 598 S.W.3d at
90-91. Here, Appellant continued to use drugs and undermined his drug treatment
and probation supervision on multiple occasions. This poses a significant risk to
the community and proves that Appellant cannot be managed in the community.
CONCLUSION
Based on the foregoing, we conclude that the trial court did not err in
revoking Appellant’s probation; therefore, we affirm the judgment of the court.
ALL CONCUR.
6
The appellant in McClure tried to use another person’s urine to pass a drug test.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Steven J. Buck Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Jenny L. Sanders
Assistant Attorney General
Frankfort, Kentucky
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