Jarrell v. Commonwealth , 2012 Ky. App. LEXIS 233 ( 2012 )

THOMPSON, Judge,

Dissenting:

I respectfully dissent. Under the current version of our penal code, Jarrell’s probation could not be revoked for a single use of oxycodone.

In response to the rapidly rising rate of incarceration and its costs, the Public Safety and Offender Accountability Act, commonly referred to as House Bill 463, was enacted as a comprehensive revision of our penal system. See Commonwealth of Ky. Legislative Research Commission, Report of the Task Force on the Penal Code and Controlled Substances Act, Research Memorandum No. 506 at 6 (2011). In the context of sentencing drug offenders, the General Assembly made a specific legislative finding that community based treatment can be used as an effective tool to reduce criminal risk factors and that appropriate treatment plans offer potential alternatives to incarceration.

In addition to revisions to our penal sentencing provisions, substantial changes were made to our probation revocation provisions. Notably, the legislature expressly declared that even if a probation violation is found, the court must make two findings before revoking the offender’s probation and imposing the sentence of incarceration. Specifically, the court must find that the violation constitutes a significant risk to prior victims or the community, and the probationer cannot be managed in the community. KRS 439.3106(1).

The circuit court made written findings that Jarrell’s imprisonment was necessary to protect the public because there was a substantial risk that during probation he will commit another felony, he is in need of correctional treatment that can be provided most effectively through commitment to a correctional institute, and probation would unduly depreciate the seriousness of his crime. In doing so, it only considered the violent nature of the offenses to which Jarrell pled guilty, first-degree wanton endangerment and fourth-degree assault and that Jarrell consumed illegal drugs in violation of his probation.

The 2011 changes to our penal system were sweeping and enacted after extensive research, debate, and analysis and were, in part, accomplished for the purpose of increasing community drug treatment instead of incarceration. As a result, KRS 439.3106(1) does not allow a trial court to merely consider a probationer’s underlying conviction to determine that he is a significant risk to the community. Instead, the statute requires that the probation violation constitute a significant risk to prior victims or the community at large. KRS 439.3106(1). A single use of oxycodone does not support a finding that he poses such a risk.

Bare recitations that a probationer poses a significant risk to prior victims or the community and cannot be appropriately managed in the community without factual basis is arbitrary, unreasonable, and unfair. With the intent, spirit, and purpose of our newly enacted HB 463 in mind, I submit that this Court must reverse and remand this case to the trial court for consideration of imposing sanctions other than incarceration.