Kaenjant L. Smith 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NOT TO BE PUBLISHED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-0230-MR
KAENJANT L. SMITH APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
v. HONORABLE MICHAEL O. CAPERTON, JUDGE
ACTION NO. 19-CR-00018
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: ACREE, JONES, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Kaenjant L. Smith appeals from the Laurel Circuit
Court’s order revoking her probation and imposing sentence, arguing the
Commonwealth failed to comply with the requirements of Kentucky Revised
Statutes (KRS) 439.3106. We vacate and remand as the circuit court made
insufficient factual findings to support the revocation.
On March 2, 2018, Smith was pulled over by the Laurel County
Sheriff’s Department while driving a 2012 Chevrolet Equinox which had
previously been reported stolen by Linda Vanhook. On January 18, 2019, Smith
was indicted for: (1) receiving stolen property of $500 or more, but less than
$10,000; (2) not having her license in her possession; (3) operating a motor vehicle
with an expired operator’s license; and (4) being a persistent felony offender in the
second degree (PFO-2) based on being convicted of facilitation to manufacture
methamphetamine and sentenced to five years of incarceration on January 4, 2013.
Smith entered into a plea agreement and on September 17, 2019, the
judgment and sentence on plea of guilty was imposed in accordance with the
Commonwealth’s recommendation. The circuit court sentenced Smith on count
one to five years of incarceration, enhanced to ten pursuant to count four for being
a PFO-2, to be probated for ten years, dismissed counts two and three, and ordered
restitution be paid to compensate Vanhook for damage to her vehicle.1
On February 3, 2020, the Commonwealth filed a motion to revoke
probation, the body of which stated in two sentences that it was requesting
1
It appears Smith’s probation was set at ten years pursuant to KRS 533.020(4), as this length of
time was deemed necessary for Smith to complete paying $5,700 of restitution to Vanhook. The
payment schedule required Smith to make an initial payment of $500 and then $200 per month.
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revocation because Smith failed to abide by the terms of her probation by failing to
make restitution payments as ordered.
On May 21, 2020, a Probation and Parole Officer filed an affidavit
requesting that Smith’s sentence of probation be revoked and that a warrant be
issued for her arrest. The officer stated that Smith violated her probation as
follows:
Absconding – Kaenjant Smith failed to report as
instructed on 03/12/2020, and now on 04/09/2020 or any
date thereafter. This Officer has called the last phone #
given by Ms. Smith trying to get up with her only to
discover that all phone #’s have been disconnected. Also
this Officer was unable to do a home visit due to the
Covid-19 virus, but has had contact with Ms. Smith[’s]
family and discovered that she was not living at the last
address reported to her officer. This Officer has checked
JusticXchange and called the local hospital. Subject is
not incarcerated or hospitalized at this time, and all
efforts to locate her have been exhausted.
On January 13, 2021, the circuit court held Smith’s probation
revocation hearing via Zoom. Smith’s counsel stipulated to the violation of
probation, acknowledged the serious nature of absconding from probation, and
requested that Smith be given a six-month sanction of incarceration and continued
on probation, with the understanding being that this was her final opportunity and
if she violated again, her probation would be revoked. Smith’s counsel noted that
Smith had a three-month-old child.
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The Commonwealth opposed any graduated sanctions, indicating that
Smith had made no efforts to comply with the conditions of her probation in
absconding for the previous eleven months until her arrest a month prior, made no
effort to pay restitution, and “did nothing” with the opportunity that probation
afforded her.
There was some discussion of Smith having a three-month-old child,
and whether this child was conceived while she was absconding. There was also
discussion about Smith’s prior criminal history, including that: she had not been
arrested for anything while on probation; she was a PFO-2 with that prior felony
being facilitation to manufacture methamphetamine; and she was probated on her
previous felony but then revoked and served her sentence. The circuit court
observed that Smith had already been revoked on her prior felony and knew what
jail was like.
Smith testified and asked for another chance, explaining that she
needed to get back to her child. She stated that the last time she reported for
probation was in February 2020. She acknowledged “I absconded . . . I was
pregnant and I was scared. I was terrified.” She also stated that she had “no
excuse” for absconding.
The circuit court ruled from the bench as follows:
Well, we have a prior probation violation. I mean I . . . I
really don’t see what we’re learning here. I don’t really
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see that she can learn. The defendant stipulates a
violation. The court does in fact find a violation. There
is a current PFO and a prior probation violation which we
violated back in 2011. Impose sentence, thank you.
The written judgment and sentence of imprisonment was entered on
January 15, 2021. The circuit court’s findings in full were:
1. Defendant was probated by order of this Court upon
conditions set out in said Order of Probation.
2. Defendant has willfully and without excuse violated
the conditions of said probation as stated in the
Affidavit of Tip Smith as follows:
a. The Defendant absconded from Probation and
Parole.
3. Defendant was duly and properly served with notice
of this hearing.
Smith argues on appeal that the circuit court: (1) failed to make
findings required by KRS 439.3106(1); (2) failed to consider graduated sanctions
under KRS 439.3106(2); and (3) abused its discretion by revoking her probation.
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 Smith’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, [her] community; and whether the trial court, in fact,
made those requisite findings.” McClure, 457 S.W.3d at 732.
Smith’s first argument is that the circuit court failed to make findings
required by KRS 439.3106(1). Smith argues the requisite findings are absent from
both the circuit court’s oral and written findings, noting “[n]ot once during the
January 13, 2021 hearing are the words ‘risk,’ ‘danger,’ or ‘community’ ever
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uttered by the government or the trial court” and “[t]he trial court’s written order is
devoid of any statutory findings as well.”2
The Commonwealth generally argues that the circuit court made
sufficient oral findings because:
Whether a person can be rehabilitated in a community
setting is synonymous with whether that person can be
managed in the community. And whether a person is
likely to reoffend if not in custody is synonymous with
whether that person is a significant risk to the
community. In essence, the trial judge found that Smith
had a bad record for both.
The Commonwealth also argues that the circuit court made a finding to the effect
that Smith’s failure to abide by a condition poses a significant risk to prior victims
or the community at large because “[a] probationer cannot be managed in the
community when she cannot be supervised. Smith posed a risk to the community
and could not be effectively managed there.”
We agree that absconding is a serious probation violation and that
such a violation could be sufficient to establish that Smith was a significant risk to,
and unmanageable within, her community. See Compise v. Commonwealth, 597
2
Smith admits that this argument was not specifically preserved for appeal and requests palpable
error review. As noted in Walker, 588 S.W.3d at 459, the failure of a court to make any findings,
either written or oral, as to whether the probationer’s violation constituted a significant risk to
prior victims or the community at large and that the probationer could not be appropriately
managed in the community, if true, would satisfy the palpable error standard of review.
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S.W.3d 175, 182 (Ky.App. 2020) (noting that “a defendant who will not cooperate
with the conditions of her supervision may indeed constitute a significant risk to
the community at large and be unmanageable in the community.”).
However, after reviewing the circuit court’s oral and written findings,
we conclude that the circuit court failed to make such findings. Rather than
making perfunctory findings echoing the statutory language, it made no findings
addressing the necessary criteria in KRS 439.3106(1) at all. The circuit court did
not specifically find Smith to be any risk, let alone a significant risk, to either
Vanhook or the community as a whole. See Compise, 597 S.W.3d at 182 (vacating
revocation of Compise’s pretrial diversion because “[t]he circuit court never made
a finding that Compise was a significant risk. While the circuit court may have
intended to make such a finding, it was never articulated.”). While Smith did
abscond, there was no evidence that she committed any new crimes while on
probation, which could militate against such a finding.
Similarly, although this is a closer issue, the circuit court never found
that Smith could not be managed in the community. While certainly the circuit
court’s comments about Smith’s failure to learn could imply that she could not be
managed in the community, graduated sanctions could perhaps have provided a
means of teaching Smith to follow the requirements of probation.
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While perhaps the circuit court might think that Smith could not
handle ordinary probation, pursuant to KRS 446.010(20), a “graduated sanction”
can include “electronic monitoring; . . . and short-term or intermittent
incarceration[.]” Perhaps options such as these would have been effective,
especially if combined with an order empowering probation and parole to be able
to use graduated sanctions with Smith as guided by 501 Kentucky Administrative
Regulations (KAR) 6:250.3
Although the Commonwealth would like us to “squint” at the oral
findings and find them to satisfy the requirements of KRS 439.3106(1) as implied
in what the circuit court did say, this requires inferences upon inferences.
However, as noted in Lainhart, 534 S.W.3d at 238, express findings are needed for
us to engage in proper review. Therefore, we must vacate and remand for an
appropriate decision.
As we have already determined that the circuit court did not make
appropriate factual findings and the revocation must be vacated, we need not
address Smith’s second and third arguments. We do so to clarify that these
3
While absconding cannot be addressed through graduated sanctions, a failure to report and
other minor violations can be. Compare 501 KAR 6:250 Section 2, which deems absconding to
be a “[v]iolation[] which shall be returned to the releasing authority[,]” with Section 4 which
provides that failing to report is a minor violation. Perhaps if Smith faced consequences for
minor violations, such correction might prevent more serious violations.
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claimed errors in and of themselves would not require that Smith’s probation
revocation be vacated, had sufficient factual findings been made.
Smith’s second argument is that the circuit court erred by failing to
consider graduated sanctions. Smith argues that despite her argument for a six-
month sanction, the circuit court determined that because Smith agreed to a ten-
year sentence in her plea agreement that this should be her punishment.
This argument is not well taken. Having reviewed the probation
revocation hearing, it is apparent that the circuit court was concerned that Smith
had not learned anything about the consequences that would follow from failing to
abide by the conditions of probation and that was why her probation needed to be
revoked, rather than based upon the sentence that had previously been imposed. It
is well established in Andrews, 448 S.W.3d at 780-81, that circuit courts retain
discretion to decline to impose graduated sanctions. Additionally, as noted in
McClure, 457 S.W.3d at 732, “[n]othing in the statute or in the Supreme Court’s
interpretation of it requires the trial court to impose lesser sanctions prior to
revoking probation.” We do not think that the circuit court failed to consider
imposing a graduated sanction but instead disagreed that a six-month sanction
would be appropriate here.
Smith’s third argument is that the circuit court abused its discretion by
revoking Smith’s probation, raising several potential problems. Smith argues that
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the circuit court’s “decision was arbitrary because Smith’s probation was revoked
for a common violation and, seemingly, her criminal history.” Smith argues that it
was not clear in the probation revocation hearing that Smith only had one prior
felony conviction and not two, and that her criminal history cannot be a basis for
revocation as it was known at the time she was placed on probation. Smith also
raises concerns that “it does appear that the trial court considered Smith’s
pregnancy negatively and insinuated that she should not have gotten pregnant and
had a child. Any decision by the trial court wherein a woman’s pregnancy is
considered negatively is inherently arbitrary and fundamentally unfair.” Finally,
Smith argues there was insufficient evidence to revoke based solely upon her
stipulation and the Commonwealth’s failure to call any witnesses and failure to
claim Smith was a danger or risk to the community.
We note that Andrews, 448 S.W.3d at 780, authorizes circuit courts to
consider a probationer’s past criminal history, opining that while such “criminal
history could not be the sole basis for his revocation, it was appropriately
considered when assessing the risk posed by his continued probation.” We are
confident that the circuit court considered more than just Smith’s prior criminal
history in deciding to revoke her probation. Based on our review of the probation
revocation hearing, we do not believe that there was any confusion as to what
Smith’s prior criminal history was, only whether she had previously served
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probation on her prior charge, with this confusion being remedied during the
exchanges between defense counsel, the circuit court, and the Commonwealth.
While Smith’s pregnancy was discussed, we do not believe that it impacted the
circuit court’s ultimate decision. We believe that Smith’s stipulation when
combined with the affidavit from Probation and Parole provided a sufficient basis
for revocation if appropriate findings had been made, at least as to the charge for
absconding. While it is unclear whether Smith’s stipulation of violation was
intended to cover a violation for failure to pay restitution or not, there was no
evidence as to such a violation and we note that an inability to pay restitution could
offer a defense to that violation. See Compise, 597 S.W.3d at 181.
Accordingly, we vacate the judgment and sentence removing Smith
from probation and remand for the Laurel Circuit Court to make findings as to
whether the violation of Smith’s probation for absconding constituted a significant
risk to her prior victims or the community at large and whether Smith cannot be
appropriately managed in the community pursuant to KRS 439.3106(1) or whether
alternative sanctions were appropriate under KRS 439.3106(2).
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Kelly Kirby Ridings Daniel Cameron
London, Kentucky Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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