William James Lewis v. Commonwealth of Kentucky ( 2022 )

RENDERED: NOVEMBER 4, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0229-MR
WILLIAM JAMES LEWIS APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 17-CR-00447
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: JONES, LAMBERT, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: William James Lewis appeals from the Fayette Circuit
Court’s order revoking his probation on the basis that the circuit court made
insufficient findings pursuant to Kentucky Revised Statutes (KRS) 439.3106(1).
As the findings were sufficient, and Lewis was repeatedly provided with graduated
sanctions but refused to alter his behavior, we affirm.
In November 2016, police received a tip that Lewis was sending and
receiving child pornography on Facebook and executed a search warrant which
confirmed his possession and distribution of such images. On May 1, 2017, Lewis
was indicted on ten counts of possession or viewing of a matter portraying a sexual
performance by a minor and ten counts of distribution of a matter portraying a
sexual performance by a minor. These were all Class D felonies.
On December 1, 2017, pursuant to a plea agreement in exchange for a
recommendation that the ten counts of distribution of a matter portraying a sexual
performance by a minor be dismissed, Lewis agreed to plead to the ten counts of
possession or viewing of a matter portraying a sexual performance by a minor,
with one year to serve on each count, with the Commonwealth recommending that
counts one through eight run consecutive and counts nine and ten run concurrent.
The circuit court ordered that Lewis have a comprehensive sex offender pre-
sentence evaluation. Lewis requested alternative sentencing, submitting an
alternative sentencing plan to the court.
On February 7, 2018, Lewis’s final judgment and sentence of
probation was entered. The circuit court sentenced Lewis in accordance with the
Commonwealth’s recommendation, to a total of eight years, but suspended
imposition of his sentence, instead placing Lewis on probation for five years. The
conditions of probation included that he:
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1. Maintain good behavior, refrain from violating the
law in any respect and comply with the rules and
regulations of the Division of Probation and Parole.
The Defendant is to report and follow direction[s] of
her [sic] probation officer and permit home visits;
2. Waive confidentiality and consent to release to the
probation officer and the court all records, reports,
tests and information from all programs ordered or
selected by the court or the probation officer;
3. The defendant will consent to any search of her [sic]
person or of places or property under her [sic] control
when requested by the probation officer or police
officer;
...
6. Continue to participate in sex offender treatment
program [SOTP] and follow any after care
recommendations;
7. The Defendant shall have no unsupervised contact
with underage children unless it is supervised and
approved by Probation and Parole;
...
9. Comply with Probation and Parole’s conditions for
sex offenders;
10. Register as a sex offender with Probation and Parole
within 14 days from the date of sentencing (defendant
required to sign form);
11. Follow all Probation and Parole’s restrictions
regarding the use of computers, internet, access, chat
rooms, social media and search of all computer
hardware/software[.]
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Probation and Parole’s supplemental conditions of supervision for sex
offenders (supplemental conditions) included the following conditions:1
I shall attend, participate, and successfully complete a
Sexual Offender Treatment Program. I shall be required
to submit, at my own expense, to random polygraph
examinations as part of a sex offender treatment program.
I shall not possess any sexually arousing materials
including but not limited to:
a. Videos, magazines, books, games
b. Sexual devices or aids
c. Any material that depicts partial or complete nudity or
sexually explicit language[.]
I shall not engage in any activity by computer or
telephone, including any visual or written,
correspondence which is sexually arousing.
I shall have no contact with anyone under the age of
eighteen (18), unless it is specifically authorized by my
Probation and Parole Officer and treatment provider, if I
am in Sexual Offender Treatment. ‘Contact’ means face-
to-face, telephonic, any correspondence including
electronic, written, and visual, or any indirect contact via
third parties.
1
Unfortunately, these supplemental conditions were never provided in full in the record.
Instead, they were quoted in various violation of supervision reports. Sometimes these reports
provided a number for these supplemental conditions; sometimes they did not. Accordingly, we
simply list the supplemental conditions which Lewis was accused of violating in an order of our
choosing without any numbers. We note that it is likely that there were additional conditions
that we have omitted with which Lewis complied.
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Probation and Parole’s computer use agreement for sexual offenders
(computer use agreement) included the following conditions:2
By signing below, the above named offender indicates
(s)he understands (s)he has the right to refuse consent to
the items contained herein and that the offender agrees as
follows: computer access to the Internet may pose
significant risk of re-offense if not properly managed and
the undersigned offender specifically agrees to be fully
compliant with the following conditions:
Offender must agree to and submit to electronic device
monitoring through Probation and Parole’s contracted
electronic device monitoring company at his own
expense to engage in the following activities:
Web browsing, Email, Producing web content (e.g.
YouTube, podcasting or blogging,) internet related
telephone communications, file sharing by any method
(including but not limited to Peer to Peer, attachments to
emails, iTunes.) The offender has no expectations of
privacy regarding computer use, or information stored on
the computer if monitoring software is installed and
understands and agrees that information gathered by said
monitoring software may be used against him/her in
subsequent administrative or legal proceeding, court
actions regarding his/her computer use, and conditions of
release.
Offender will provide the Supervising Officer/Designee
with a current list of all cell phones, electronic devices,
and related equipment used by the offender, including
back-up systems. Offender will keep this list current.
2
As with the supplemental conditions, we do not have a complete list of these and simply list
those computer use agreement conditions which were quoted in various violation of supervision
reports.
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Offender agrees that (s)he shall be prohibited from
possessing 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:
A. Images of your victim.
B. Stories or images relating to your crime or similar
crimes.
C. Images, which depict individuals similar to your
victims (e.g. children)
D. Stories written about or for individuals similar to your
victim.
E. Materials focused on the culture of your victim (e.g.
children’s shows or websites).
Later in 2018, the first violation of supervision report (report) was
filed, in what would become a series of reports: (1) August 22, 2018; (2) February
5, 2019; (3) May 23, 2019; (4) May 30, 2019; (5) November 8, 2019; (6) June 29,
2020; and (7) October 30, 2020. These reports led to five probation revocation
hearings with orders ultimately determining as follows: (1) March 11, 2019 order
resulted in probation modification; (2) August 19, 2019 order resulted in no action
taken; (3) December 20, 2019 order resulted in probation modification; (4) August
21, 2020 order resulted in no action taken; and (5) January 14, 2021 order
terminating Lewis’s probation.
In a report dated August 22, 2018, Probation and Parole reported that
Lewis violated two supplemental conditions as follows:
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Through the software monitoring system that Mr. Lewis
has for his smart phone, a check was completed and
revealed that Mr. Lewis had sent text messages relating
to sexually explicit messages. Mr. Lewis also had an
image of his boyfriend[’]s penis on his phone . . . .
Mr. Lewis had engaged in sexually explicit text messages
with his boyfriend, that depicted both nudity and written
language about engaging in sexual acts.
The report indicated that the circuit court advised that Lewis should be given a
verbal warning “given that the violations were related with his fiancé[,]” but noted
that if he “continues to violate the supplemental conditions of supervision for sex
offenders, along with the computer use agreement for sex offenders then
revocation will be requested.”
In a Kentucky sexual offender registry notice of non-compliance,
dated August 29, 2018, it was indicated that Lewis failed to complete and return
the address verification form. However, in an update to this notice dated
September 13, 2018, it was noted that Lewis had now updated his address and was
“deemed to be in ‘Compliance’ as required by law.”
In the report dated February 5, 2019, the probation officer indicated
that Lewis had committed three violations of the terms of his probation. Two of
these violations related to the requirements that Lewis complete and not be
terminated from a SOTP. The probation officer indicated Lewis was terminated
from his SOTP “for multiple reasons including having high-risk pre-offense
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behavior and failing to purchase a treatment manual” and for “violating their
conditions of treatment contract.”
The other violation involved the computer use agreement with the
officer explaining a routine phone check with the software monitoring system led
to the discovery of improper materials on Lewis’s phone:
Mr. Lewis had searched for photos on Google of
prepubescent boys with their shirts off. Mr. Lewis had
multiple searches of young boys with their shirts off
smiling. It should be noted that this is considered high-
risk behavior as the boys found on Mr. Lewis[’s] phone
were the same age related towards the victim of his
crime.
The probation officer additionally noted “Mr. Lewis also verbally admitted to
searching ‘boys peeing’ on his cell phone.”
The affidavit by Lewis’s probation officer dated February 7, 2019,
confirmed these charges. The officer sought revocation of Lewis’s probation.
The probation violation hearing was held on March 7, 2019. During a
bench conference, the circuit court expressed that its biggest concern was that
Lewis kept remaining untreated, that this was a much bigger concern than him
reoffending on a device. The circuit court announced in open court as follows:
I don’t think there is any dispute that he did violate the
rules of the program. . . . I accept that stipulation. . . .
You need to understand that you have got to complete
this program. . . . Because even if I put you in the
penitentiary you won’t get out until you finish this
program. . . . So you have got to appreciate the fact that
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you have got to complete this program. . . . I can’t stress
enough that you have got to complete this program . . . or
else you’ll be sitting in jail for a long, long time.
In the written order modifying probation entered on March 11, 2019,
the circuit court stated that Lewis stipulated to violating the terms of his probation.
The circuit court found that Lewis violated the conditions of his probation but that
he should remain on probation on modified terms, adding the additional terms:
1: Serve 60 days with credit.
2: Report to Probation Parole when released.
3: Must Complete Sex Offender Program.
4: Probation and Parole is given Discretionary
Detention.
In a report dated May 23, 2019, the probation officer noted that since
Lewis was continued on probation as modified “Lewis has continued to violate the
conditions set forth by the Court and remains a high risk of reoffending and a
danger to the community while he remains out of custody untreated.” The officer
explained that Lewis was not yet eligible for re-referral to the Kentucky SOTP for
another 120 days, and so on May 8, 2019, the officer instructed Lewis to enter and
complete a private SOTP until he could possibly reenter the state one. The officer
explained that on May 21, 2019, the officer received notice that Lewis would not
be accepted into the only private program in Lexington “due to leaving several
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threatening and angry messages for the treatment provider” resulting in a new
violation for failure to complete a SOTP.
The officer noted another violation as the monitoring software on
Lewis’s phone revealed he viewed “boys gymnastics” on YouTube, bringing up
several videos of prepubescent male children performing gymnastics and went on
to watch a video which showed several young male children without shirts
performing gymnastic stunts.
The officer explained that a home visit on May 21, 2019, showed
Lewis violated the computer use agreement by failing to provide a current list of
his devices as a computer without the monitoring software installed was located
during a home visit, and determined to have been used for the “viewing of porn,”
contained “saved pictures of a naked man and a young boy urinating,” and was
used for viewing several “Facebook photos of young prepubescent male children
without shirts.” The officer gave Lewis the benefit of the doubt that he was not the
one who viewed these pictures as Lewis and his boyfriend both claimed it was the
boyfriend’s computer (although Lewis had admitted to using it) but explained that
this computer would need to be monitored and Lewis would be held accountable
for anything viewed on the device after this point.
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The probation officer requested a verbal or written warning for these
new violations and discretionary detention with supervisor approval. Discretionary
detention of fourteen days was approved.
In a report dated May 30, 2019, the probation officer reiterated the
violations from the week before and noted a new violation for failing to comply
with the requirement for downloading the monitoring software onto the computer,
explaining that although Lewis received instructions as to how to download this
software on May 22, 2019 and was instructed to have it downloaded by May 24,
2019, as of a check on May 30, 2019, Lewis had yet to install the monitoring
software, “and therefore continues to have access to an unmonitored device that
multiple violations have already been discovered by this officer. This poses a
serious threat to the community as Mr. Lewis has access to communicate with
minors without this officer’s knowledge.”
In an affidavit signed on May 30, 2019, Lewis’s probation officer
confirmed these charges and requested that Lewis’s probation be revoked.
Lewis’s probation revocation hearing was held on June 20, 2019. At
that time, it was discussed that the monitoring software had not yet been installed
on Lewis’s boyfriend’s computer. The circuit court continued the hearing for two
weeks to allow an opportunity for the software to be installed.
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In a special supervision report (special report) dated June 21, 2019,
the probation officer indicated that the officer received a text message on a number
only available to offenders on that officer’s case load which stated it was from one
of Lewis’s friends and the message used foul and threatening language due to the
officer’s request that Lewis remain in custody. The officer indicated:
This officer is not requesting that this message be used to
violate Mr. Lewis’[s] Probation but to be used as
evidence that should Mr. Lewis be let out before he can
be re-assessed for treatment he will continue to violate
due to those he associates with. Should Mr. Lewis
continue to violate then he will more than likely not be
able to re-enter KY SOTP.
In the hearing held on July 3, 2019, it was represented that the non-
compliant desktop computer was removed from the residence and that Lewis
would be eligible to apply to be accepted back into the state run SOTP as of
August 5, 2019. The circuit court ordered that the application be submitted on that
date and set a new hearing for August 8, 2019.
In an order entered on July 18, 2019, granting Lewis’s release, the
circuit court set forth that Lewis would be released on August 5, 2019, and
required that he immediately report to Probation and Parole for a new sex offender
treatment evaluation. At the August 8, 2019 hearing, the circuit court was
informed that Lewis had been accepted back into Kentucky SOTP. On August 19,
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2019, an order indicated that no action on the probation revocation would be taken
at that time.
In a report dated November 8, 2019, new violations involved Lewis’s
improper use of Facebook by posting pictures of a shirtless underage male, thereby
violating the supplemental conditions against possessing sexually arousing
materials and having no contact with anyone under eighteen, and for being
terminated from the KY SOTP. The officer recommended revocation, explaining:
“Mr. Lewis poses a serious threat to the community as he remains untreated and
has exhausted all forms of treatment with Probation and Parole. This officer
respectfully recommends revocation so Mr. Lewis can enter and complete SOTP in
the institution.”
In an affidavit signed on November 12, 2019, the officer explained:
On October 30, 2019, this officer received a community
complaint that Mr. Lewis was using Facebook to
communicate with minors and posting photos of male
minors without their shirts. A check of Mr. Lewis’[s]
public Facebook profile depicted posts made earlier in
the week of a male minor without his shirt on. That one
particular post was made several times in one day . . . .
When confronted about his use on Facebook, Mr. Lewis
claimed the photos were of a friend who asked him to
post them. Mr. Lewis stated he posted the partial nude
photos of the underage male as a favor. Due to Mr.
Lewis stating the underage male had asked Mr. Lewis to
post the photos indicates that Mr. Lewis was in contact
with a minor.
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The officer also indicated that Lewis was terminated for the second
time from the KY SOTP on October 31, 2019, and would not be eligible to be
accepted back into the program. The officer indicated that Lewis was terminated
due to:
“violation(s) of provision(s) of Treatment Contract” and
“Refusal to change unhealthy preoffense behavior(s).” It
was noted in the termination letter that “Mr. Lewis has
demonstrated a repeated, consistent pattern of extreme
high-risk pre-offense behavior that substantially increases
his chances for re-offense.”
On December 19, 2019, at the probation revocation hearing, counsel
told the circuit court that Lewis was accepted into a private SOTP program, and
that Lewis understood this would be his final chance. The circuit court explained
to Lewis:
I don’t know if you realize the significance of you not
cooperating with these programs, okay? Because you
might think you could go back to the penitentiary and get
out quickly. You cannot. This thing is going to take you
a long time to do it within the institution.
After explaining that Lewis would get a sanction and be required to do the SOTP
the circuit court explained further: “And sir, this is your last chance and after that
you are going to the penitentiary and you will not get out anytime soon because
these programs you can only do at the very end of your sentence.”
On December 20, 2019, an order modifying probation was entered.
The circuit court noted that Lewis stipulated to violating the terms of his probation
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and found that Lewis violated the terms of his probation but should remain on
probation on modified terms: “1: Serve 90 days with credit. Defendant shall enter
and complete treatment on direction of Probation and Parole.”
In yet another report dated June 29, 2020, the probation officer
explained that Lewis was currently in violation of his supplemental conditions by
possessing sexually arousing materials, including sexual devices or aids, as
follows:
After receiving a community complaint from Mr.
Lewis’[s] significant other claims Mr. Lewis was using
drugs and had access to an unmonitored device, a home
visit was conducted on 06/26/2020. During the home
visit a search was conducted in an attempt to locate the
reported unmonitored device. During the search, several
sexual devices/aids were found throughout Mr. Lewis’[s]
belongings. Some of these devices depicted complete
nudity as well.
The report indicated that Lewis admitted guilt to this violation and accepted the
consequence of serving twenty days of discretionary detention as a graduated
sanction.
A revocation hearing was held on August 14, 2020, via Zoom. The
probation officer testified and noted that Lewis admitted to his violation, was given
a graduated sanction, and had served it. The officer expressed concern that
Lewis’s SOTP counselor was not holding him accountable for missing sessions
and payments.
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The circuit court again lectured to Lewis about the importance of
completing the SOTP program, stating, “Mr. Lewis, there is something wrong with
you ‘cause you don’t seem to understand that you have got to do this program.”
After Lewis indicated that he was working with his counselor on the payment
issue, the circuit court again explained:
You will have a problem if you’re not complying with
the rules. I’ll say this again to you, sir. You’re not
getting out from doing the program successfully because
if, one more slip up and you’re going to jail. Because
I’m not going to put up with it anymore.
On August 21, 2020, an order was entered indicating that no action
would be taken at that time.
In a special report dated September 16, 2020, Lewis’s probation
officer reported problems regarding Lewis’s treatment by the private SOTP located
in Frankfort, Kentucky, which he began attending in January of 2020. The officer
indicated a belief that this program failed to comply with 501 Kentucky
Administrative Regulations (KAR) 6:220 Section 2(4)(c)3 by failing to make a
good faith effort to obtain Lewis’s previous mental health records despite being
told by the officer to have Lewis sign a release of information to allow the program
to access his prior SOTP treatment history. The officer indicated a belief that this
program also failed to comply with 501 KAR 6:220 Section 2(5)(e) and (5)(f) by
3
The probation officer listed 501 KAR 6:220 Section 2(2)(c) which appears to be a typo.
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failing to notify the officer if the offender fails to attend or fails to make a good
faith effort to participate in the program, and provide monthly progress reports to
the officer, as despite Lewis’s enrollment in January, the private SOTP program
had only submitted one progress report (dated August 28, 2020) for the entire year;
while this progress report stated that Lewis had missed classes, it did not state how
many or when, or how Lewis was held accountable for these absences.
In consequence, the officer indicated that on September 2, 2020,
Lewis was directed to contact a private clinician in Somerset, Kentucky, no later
than September 4, 2020. However, “[t]his officer was notified that Mr. Lewis did
not make contact with the listed number for the clinician until September 15,
2020.”
In a report dated October 30, 2020, the probation officer recounted:
A home visit was conducted on October 28, 2020 in
response to a community complaint that Mr. Lewis and
his boyfriend James Grimes had been using drugs and
making threats against another parole officer. Upon
entering the home Mr. Lewis and his boyfriend James
Grimes were detained due to the threatening and
harassing nature of the complaints and threats received
by another officer at probation and parole. It was
apparent that there were multiple smart devices in the
apartment due to a smart phone being found in the living
room and multiple phone chargers throughout the home.
A search was conducted by Probation and Parole officers
with assistance from the Lexington Police Department.
The following items were found in the apartment: (14)
.38 spl, (10) 9mm, (2) .380 acp, (2) .22 lr, (1) .25 acp, (1)
.45 acp, (1) .32 s&w, Black Motorola Razor cell phone,
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Black Lenovo smart tablet, Narcan, 1 baby diaper, 3 sex
lubes, 4 plastic penises, black brass knuckles, 1 small
piece of weed, 1 white visa debit card belonging to Mark
Grimes. Mr. Lewis was arrested for probation
violations[.]
The officer requested revocation of Lewis’s probation indicating Lewis: (1)
violated the computer use agreement by not providing any information regarding
the possession of a smart tablet; (2) violated the supplemental conditions of not
possessing sexually arousing materials by having a tablet that “contained
hundred[s] of nude images and videos. Along with an extensive search history of
various pornography[;]” (3) violated the supplemental conditions of not possessing
sexually arousing materials by having possession of several sexual lubricants along
with four small plastic penises; (4) violated the conditions of probation by being
terminated from a SOTP; and (5) violated the conditions of probation by
possessing the marijuana. The officer indicated that “Mr. Lewis cannot be
effectively supervised in the community and is unwilling to successfully complete
Sex Offender Therapy as required. This is the fifth termination from a Sex
Offender Therapy Program for Mr. Lewis.”
In an affidavit signed on November 2, 2020, Lewis’s probation and
parole officer indicated that as to the SOTP termination “Mr. Lewis had cancelled
three separate appointments to begin SOTP with this counselor [Samantha Baker].
Ms. Baker stated that Mr. Lewis would not be accepted into their private SOTP
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and had he been accepted these current violations [which the officer informed
Baker about] were serious enough for termination from the program.”
On December 9, 2020, the circuit court held its final revocation
hearing for Lewis via Zoom, which ended up being continued until December 16,
2020, as Lewis’s counsel was not familiar with the report. The probation officer
testified that he took over the case because threats had been made by others against
the prior officer and a day after he received the case a complaint was called in
indicating that there were drugs and weapons in the apartment. He testified
consistently with the report about what was discovered in the apartment, including
the rounds of ammunition, indicating those were sitting out on a shelf in the
kitchen/dining room area, and that the debit card belonged to the person who had
made the report. The officer testified that the baby diaper was located in the only
apartment bed.
The officer explained that as to the SOTP, Lewis had three separate
appointments and kept canceling, and that given that and Lewis’s violations that
the program would not accept him. The officer acknowledged that Lewis stated he
had transportation problems.
Lewis called his boyfriend to testify, but due to connection issues with
Zoom, the boyfriend was not able to testify; Lewis was allowed to make a proffer
about what the boyfriend would testify. Counsel indicated that the boyfriend
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would testify that Lewis made every effort to attend the SOTP program in
Somerset, the ammunition and tablet belonged to a third party that was staying
with them, the sex toys and condoms belonged to the boyfriend and were used with
Lewis in their consensual relationship, and that Lewis could maybe live in
Louisville with his aunt. Counsel also indicated that he had spoken to the
counselor of the Frankfort SOTP and that Lewis could go back to that program as
she had not kicked him out of that program.4 The circuit court indicated that it
would accept the proffered testimony as if the boyfriend had testified.
The circuit court announced:
Enough is enough with Mr. Lewis. I have bent over
backwards, backwards for this gentleman to just get his
act together and just finish one of these programs. That’s
all I wanted. I didn’t want to send him to the
penitentiary, but he keeps messing it up. I, you know, I
can’t continue him on probation. It’d make, it’d make a
mockery of the system after this he’s, he’s not able to
finish this sex offender program, you know, and I leave
him on probation, it’s too much [counsel]. I’m revoking
him.
I’m revoking you Mr. Lewis. No more chances. You’re
going to have to serve your time. I’m sorry, but you just
will not do what I’ve asked you to do.
4
This was the program that the probation officer removed Lewis from attending as the program
failed to report monthly on Lewis’s progress and apparently had no consequences for him when
he missed sessions.
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Lewis interjected that he never got the proper address for the SOTP in
Somerset, and he drove around for an hour looking for it. He indicated he would
be willing to return to the Frankfort SOTP.
The circuit court indicated, “I’ve had little tabs for every hiccup on
your case and yours takes the cake. I’ve bent over backwards for ya. It’s the end
of the road man. I’m sorry.”
The order revoking probation was filed on January 14, 2021. The
order indicated that Lewis stipulated to violating the terms of his probation. The
circuit court then found that “the Defendant has violated the terms of his probation.
The Defendant’s failure to abide by a condition of supervision constitutes a
significant risk to the community and the Defendant cannot be managed in the
community.”
Lewis argues that the circuit court did not make the necessary factual
findings to revoke his probation, the KRS 439.3106(1) factors were not analyzed,
and the evidence does not support revocation. We strongly disagree.
We review the circuit court’s decision to revoke probation for abuse
of discretion. Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014);
Helms v. Commonwealth, 475 S.W.3d 637, 644 (Ky.App. 2015). “[W]e 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
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facts to the law.” McClure v. Commonwealth, 457 S.W.3d 728, 730 (Ky.App.
2015).
KRS 439.3106 provides in relevant part as follows:
(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.
“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.” Andrews, 448
S.W.3d at 780.
For purposes of review, rather than speculate on
whether the court considered KRS 439.3106(1), we
require courts to make specific findings of fact, either
written or oral, addressing the statutory criteria. A
requirement that the court make these express findings on
the record not only helps ensure reviewability of the
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court decision, but it also helps ensure that the court’s
decision was reliable. Findings are a prerequisite to any
unfavorable decision and are a minimal requirement of
due process of law.
Lainhart v. Commonwealth, 534 S.W.3d 234, 238 (Ky.App. 2017) (internal
quotation marks and citations omitted). We note that “conclusory statements on
the preprinted forms, related to the criteria in KRS 439.3106(1)” are “not sufficient
to meet the mandatory statutory findings necessary to revoke a defendant’s
probation.” Walker v. Commonwealth, 588 S.W.3d 453, 459 (Ky.App. 2019). See
Helms, 475 S.W.3d at 645 (explaining “[i]f the penal reforms brought about by HB
[House Bill] 463 are to mean anything, perfunctorily reciting the statutory
language in KRS 439.3106 is not enough.”).
In reviewing the circuit court’s decision to revoke Lewis’s probation,
we must consider and answer two intertwined questions: “Whether the evidence of
record supported the requisite findings that [the probationer] was a significant risk
to, and unmanageable within, his community; and whether the trial court, in fact,
made those requisite findings.” McClure, 457 S.W.3d at 732.
Having thoroughly reviewed all the prior violations, the prior
revocation hearings, and the circuit court repeatedly emphasizing to Lewis that he
needed to complete an SOTP program, along with the repeated discussion about
how Lewis was a risk to the community because he kept committing violations and
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was not getting the appropriate treatment, we are confident that the outcome was
correct and amply supported.
Lewis repeatedly admitted to his past violations, both to his probation
officer and the circuit court.5 Lewis had attempted to complete a SOTP five
different times and had problems each time, resulting in his removal from two
programs for violating their terms and not being accepted into two other programs
due to his actions of acting out, not attending, and continuing to engage in
inappropriate behavior. While Lewis’s removal from the Frankfort program may
not have been his fault, even regarding this program, he was not regularly
attending. At best, the proffered evidence indicated that his boyfriend thought
Lewis was trying to attend the Somerset SOTP, but did not contravene that Lewis
failed to attend at all.
The circuit court told Lewis again and again that he needed to
complete the SOTP or he would have to do it in prison. The circuit court
repeatedly applied graduated sanctions to try to manage Lewis in the community
safely. We commend the circuit court for attempting to apply graduated sanctions
in the way that we believe the General Assembly intended in enacting House Bill
5
While Lewis did not formally admit to the last probation violation, any finding that he did was
harmless as there was overwhelming evidence to conclude that he had violated the terms of his
probation over and over and over again.
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463. 2011 Ky. Acts ch. 2, § 59 (HB 463) (eff. Jun. 8, 2011). As noted in Andrews,
448 S.W.3d at 776, “[w]ith the enactment of HB 463, the legislature adopted a
sentencing policy intended to ‘maintain public safety and hold offenders
accountable while reducing recidivism and criminal behavior and improving
outcomes for those offenders who are sentenced.’ KRS 532.007(1).”
However, each time after Lewis served a sanction and was released,
he failed to complete a SOTP and repeated to commit violations. There was no
evidence that if Lewis was continued on probation that his intractable behavior
would change, and he would start to conform his behavior to the rules. Even
during his final probation revocation hearing, Lewis kept making excuses. Even if
the circuit court accepted that Lewis could not find the Somerset SOTP location
the first time, this did not explain why he repeatedly canceled appointments.
In reviewing the hearings, the circuit court’s repeated pronouncements
and its oral findings, and the written order, it is evident that the circuit court made
a finding that because Lewis could not complete a SOTP, despite every chance he
had been given and the imposition of repeated graduated sanctions, that this was a
violation of his probation, that his failure to comply with the condition that he
complete a SOTP constituted a significant risk to the community, and that the only
way Lewis could possibly complete a SOTP was to do it while incarcerated. While
graduated sanctions ought to be attempted, there is no requirement that the circuit
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court repeat trying what has already failed until a defendant has served out his
probation.
Ultimately, under KRS 439.3106 circuit courts retain the discretion to
determine when probation ought to be revoked. Andrews, 448 S.W.3d at 777.
Whatever personal problems Lewis had, he was given ample opportunities to work
them out yet continued down the same road. Although it may have failed with
Lewis, we are confident that the circuit court did everything it could to try to
correct Lewis’s actions in the community but that it also acted appropriately when
it became apparent that this was no longer possible.
Accordingly, we affirm the Fayette Circuit Court’s order revoking
Lewis’s probation.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Aaron Reed Baker Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Thomas A. Van de Rostyne
Assistant Attorney General
Frankfort, Kentucky
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