Robert Gardiner v. Commonwealth of Kentucky ( 2022 )

RENDERED: OCTOBER 28, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0025-MR
ROBERT GARDINER APPELLANT
APPEAL FROM LARUE CIRCUIT COURT
v. HONORABLE CHARLES C. SIMMS, III, JUDGE
ACTION NO. 20-CR-00006
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: CETRULO, COMBS, AND GOODWINE, JUDGES.
COMBS, JUDGE: Appellant, Robert Gardiner, appeals from an order of the Larue
Circuit Court revoking his probation.
Gardiner was indicted on charges of attempted rape in the first degree
and attempted incest involving his stepdaughter, who was under 18 years of age.
On July 16, 2021, Gardiner entered a guilty plea to an amended charge of unlawful
transaction with a minor in the first degree. The incest charge was dismissed.
On September 20, 2021, the trial court sentenced Gardiner to five-
years’ incarceration, probated for five years, ordered that he complete the Sex
Offender Treatment Program (SOTP), and that he register as a sex offender.
On October 14, 2021, Gardiner’s probation officer, Cory Mabe, filed a
violation of supervision report in the Larue Circuit Court. Officer Mabe explained
that on October 1, 2021, Gardiner had met with Officer Samantha Bright for his
initial set up. On October 12, 2021, Officer Mabe accepted Gardiner’s transfer
request due to his living in Hardin County, and they met at the Elizabethtown
Probation and Parole Office.
Officer Mabe stated that Gardiner had violated provisions of the
Supplemental Conditions of Supervision for Sex Offenders and Computer User
Agreement for Sex Offenders, which he had signed on October 1, 2021, as set forth
therein. Officer Mabe explained that a search of Gardiner’s phone1 revealed that
he had been viewing pornographic websites since signing conditions twelve days
earlier on October 1, 2021. Significantly, the “listed videos viewed” on one of the
websites had titles similar in nature to Gardiner’s crime -- videos concerning
sexual misconduct among “step” relatives. This detail was particularly noteworthy
because Gardiner’s stepdaughter was the victim in his case. Officer Mabe further
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Officer Mabe noted in his report that Gardiner had voluntarily consented to the search of his
phone by signing the Supplemental Conditions of Supervision for Sex Offenders and Computer
User Agreement for Sex Offenders on October 1, 2021.
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noted that during their office visit, “Gardiner stated that he only pled guilty to
avoid going to jail in the hopes of getting custody of his son.” Because he never
really acknowledged his guilt, Officer Mabe predicted that “Mr. Gardiner[’s]
maintaining his innocence will inevitably cause him to fail in Sex Offender
Treatment Program.”
The trial court conducted a hearing on December 6, 2021. Gardiner
was present and was represented by retained counsel. Officer Mabe was the only
witness and he testified along the lines of his report. On December 8, 2021, the
trial court entered a detailed revocation order as follows:
On October 1, 2021, Probation Officer Samantha
Bright reviewed with Gardiner the standard conditions of
probation for sex offenders. Those conditions included
the following:
Condition No. 3 -- I shall have no contact,
direct or indirect, with the victim(s) or victim’s
family except as approved by my Probation and
Parole Officer. I am prohibited from possession or
viewing certain materials related to, or part of, the
grooming cycle for his/her crime. Such materials
include, but are not limited to, the following:
images of your victim, stories or images related to
your crime or similar crimes, images which depict
individuals similar to your crimes. Stories written
about or for individuals similar to your victim,
materials focused on the culture of your victim
(e.g. children’s shows or web sites).
Condition No. 10 -- I will not purchase,
possess, or knowingly view any material that
depicts partial or complete nudity including
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pornographic or sexually explicit written, printed,
photographed, recorded materials, electronic
software, cable station nor frequent any business
where pornographic materials are openly
exhibited, including, but not limited to: adult
bookstores, adult theaters, nude or strip bars/clubs,
prostitution activity, sexual devices or aids.
....
By way of background, Gardiner’s stepdaughter is
the victim on his conviction to first-degree unlawful
transaction with a minor. Mabe testified that numerous
pornographic websites were viewed after Gardiner
signed his conditions on October 1, 2021, including titles
related to stepchildren. Based upon Gardiner accessing
and viewing these websites, he has obviously failed to
comply with the requirements and requests of Probation
[and] Parole.
Pursuant to KRS[2] 439.3106(1), this Court finds
that Gardiner . . . has been convicted of first-degree
unlawful transaction with his minor stepdaughter. In
addition, almost immediately after Gardiner signed the
conditions of probation which included a prohibition
from viewing images of “similar crimes,” Gardiner’s
cellular telephone revealed a recent history of accessing
and viewing materials like “step dad fucks stepdaughter.”
Pursuant to KRS 439.3106(1),[3] this Court next
finds that Gardiner cannot be appropriately managed in
the community. As grounds, Gardiner is required to
complete sex offender treatment. However, with
Gardiner now denying the commission of first-degree
unlawful transaction with a minor, this Court is well-
2
Kentucky Revised Statutes.
3
Now codified as KRS 439.3106(1)(a).
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aware that Gardiner will be unable to successfully
complete the Kentucky Sex Offender Program.
Pursuant to KRS 439.3106(2),[4] this Court must
consider “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. This Court
has specifically considered sanctions other than
revocation and incarceration, but those sanctions appear
to be futile based upon Gardiner’s infatuation with
stepchildren, his compulsion to view pornographic
material related to stepchildren, and his present inability
to complete sex offender treatment due to his refusal to
admit guilt.
(Emphasis original.) The trial court revoked Gardiner’s probation and ordered him
to serve his five-year sentence pursuant to the judgment of final conviction entered
on September 22, 2021.
Gardiner now appeals, contending that the trial court abused its
discretion when it failed to invoke graduated sanctions and instead revoked his
probation.
KRS 439.3106(1) provides in relevant part that:
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,
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Now codified as KRS 439.3106(1)(b).
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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.
As our Supreme Court reiterated in Commonwealth v. Gilmore, 587
S.W.3d 627, 629 (Ky. 2019):
The first step in analyzing a probation revocation claim is
to determine whether the trial court properly considered
KRS 439.3106(1) before revoking the defendant’s
probation. Andrews,[5] 448 S.W.3d at 780. If the trial
court considered the statute, we then review whether its
decision to revoke probation was an abuse of discretion.
Id. Accordingly, “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)).
Gardiner contends that the trial court improperly concluded that he
could not be appropriately managed in the community based upon speculation:
i.e., that Gardiner would ultimately refuse to complete the SOTP program in light
of his statement to Officer Mabe that he only pled guilty to avoid incarceration.
Gardiner further contends that there were available options for managing him in
5
Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014).
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the community -- such as computer monitoring -- that would prevent him from
accessing pornography.
However, the trial court carefully considered KRS 439.3106(1) before
revoking Gardiner’s probation. Gardiner violated the terms of his probation
“almost immediately.” As the Commonwealth asserts -- and we agree -- regardless
of whether or not Gardiner could complete the SOTP due to his denial of guilt, his
behavior posed a risk both to his victim and to the community. It is clear that the
trial court did not believe Gardiner could be appropriately managed in the
community. Indeed, the trial court believed that sanctions other than revocation
and incarceration would be “futile” due to Gardiner’s infatuation with stepchildren
and “his compulsion to view pornographic material related to stepchildren” in
addition to any present inability to complete sex offender treatment due to his
refusal to admit guilt. We find no abuse of discretion.
We affirm the revocation order of the Larue Circuit Court entered on
December 8, 2021.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Erin Hoffman Yang Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Stephanie L. McKeehan
Assistant Attorney General
Frankfort, Kentucky
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