James T. Burns v. Commonwealth of Kentucky ( 2020 )

RENDERED: NOVEMBER 6, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0446-MR
JAMES BURNS APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT
v. HONORABLE ROBERT B. CONLEY, JUDGE
ACTION NO. 18-CR-00157
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: COMBS, DIXON, AND TAYLOR, JUDGES.
COMBS, JUDGE: Appellant, James T. Burns, appeals from an order of the
Greenup Circuit Court revoking his probation and imposing a ten-year sentence.
After our review, we vacate and remand.
Burns pled guilty to theft by unlawful taking over five hundred dollars
and of being a second-degree persistent felony offender (PFO II). By judgment
entered on August 15, 2019, the trial court sentenced Burns to ten years, probated
for a period of five years, to be supervised with the condition that Burns “complete
residential treatment at the Star Treatment Facility or similar residential treatment
facility.”
That treatment provision became complicated. The facility named in
the order is located in Ohio. Burns could not be transferred to the residential
treatment facility in Ohio as contemplated by the order because he had no place to
live in Ohio, and alternate arrangements were made at a facility in Kentucky. At
that point, his probation officer learned that Burns had an outstanding warrant from
Portsmouth, Scioto County, Ohio. (Trial Record (T.R.) 206, Special Supervision
Report dated 10/2/19.) The trial court conducted a hearing on October 17, 2019,
on the probation/rehab issues, which we discuss below. The court agreed to
release Burns to go to Ohio to resolve the charges there, and then he was to return
to Kentucky. Burns set out for Ohio that very day. In fact, he walked! But, as
Appellant states in his reply brief, the situation “had high potential for failure”
when the court released Burns to go to Ohio without any plan to assist him or to
anticipate the complexity of the situation he might encounter there.
At the October 17, 2019, hearing on the probation/rehab issues, the
probation officer, Amanda Tussey, explained that the situation was “really
bizarre.” After learning that Burns could not be transferred to the Ohio treatment
facility, she got him into a facility in Kentucky; but he did not have a ride to get
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there. They had to arrange for a different facility “where they could get a bus
ticket to take him.” In the meantime, Officer Tussey learned of the outstanding
warrant in Scioto County, Ohio, which was not “extraditable” in Kentucky. The
attorney for the Commonwealth proposed that the court release Burns and order
that he turn himself in to Scioto County, get those charges resolved, and “if they
probate him, they can send him to treatment, if they won’t then we’ll bring him
back over here and send him to treatment once he’s gotten that warrant taken care
of.” The trial court told the parties to put something in writing and “I’ll sign it.”
Officer Tussey stated that “as soon as he is released by Ohio, whenever that is,
then you are to report to us, Probation and Parole, in Kentucky.” When Burns
asked if he had to go to Ohio, the court advised that he did and stated, “go over
there, get that taken care of, do you what you need to do [sic], and then come back
here.” The court explained that “then we’ll get you into a treatment plan.”
Four days later, on October 21, 2019, the trial court signed and
entered an Agreed Order Amending Terms of Probation, which provides in
relevant part as follows:
1. Defendant shall be released from the Greenup County
Detention Center and immediately report to the Scioto
County Jail, to self surrender to the warrant issued in
Scioto County Court of Common Pleas . . . and answer to
the charges lodged against him therein.
2. After defendant has been released from the custody of
the State of Ohio, he shall immediately return to the
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Commonwealth of Kentucky and report to his Probation
Officer, Officer Tussey . . . [and] defendant shall
thereafter be placed into an inpatient treatment program
and shall successfully complete said treatment program.
(T.R. 210-11.)
On October 23, 2019, Officer Tussey filed a Violation of Supervision
Report as follows in relevant part:
Absconding
On 10/17/19 James Burns was court ordered to be
released and turn himself into [sic] Scioto County, Ohio
to take care of his pending Felony case there and once
released form [sic] Ohio to immediately report to this
Officer and received [sic] a substance abuse assessment
and receive an in-patient bed referral. This Officer spoke
with Scioto County, Ohio jail staff and they informed this
Officer that James Burns had turned himself in on
October 17, 2019 and was released on October 21, 2019
on his own recognizance. Subject did not report to his
officer as directed. This Officer attempted both numbers
listed on PSI and no success. A check of Justice
exchanged did not show subject being incarcerated at this
time, his whereabouts are unknown.
Failure to seek substance abuse evaluation
James Burns was court ordered to report to Probation and
parole immediately upon release from Ohio Jail, he failed
to report and obtain a substance abuse assessment as
directed.
(T.R. 212-13.)
On October 23, 2019, the Commonwealth’s Attorney filed a motion to
revoke probation. A bench warrant was issued. On November 5, 2019, Burns
turned himself in to the Greenup County Sheriff.
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At the December 12, 2019, revocation hearing, Officer Tussey
testified consistently with her report. She explained that Burns did turn himself in,
but nonetheless he was arrested. He was released from Scioto County on October
21, 2019, but he did not contact her until November 4, 2019. She believes that the
case in Scioto County is still pending. After speaking to the attorney for the
Commonwealth, she became aware of the Ohio warrant for failure to appear.
(Video Record (V.R.) 12/12/19, 1:55:07-1:57:24.)
Officer Tussey testified that Burns went to Ohio as directed on the
very same day (October 17). On November 1, 2019, Officer Tussey’s office was
contacted by Kim Bentley at a Presbyterian Church in Ohio. She related that
Burns had been sleeping on their porch, that they were trying to get him back to
Kentucky to turn himself in, and that he had been incarcerated a couple of weeks
ago. According to Officer Tussey, her office staff told Ms. Bentley that Burns
needed to report immediately. Two days later, Burns called Officer Tussey
himself. He was brought back to Kentucky by members of the church. (V.R.
12/12/19; 1:57:34-1:58:18.)
Kim Bentley, who testified on his behalf, is affiliated with the
Presbyterian church in Portsmouth, Ohio. She knows Burns because he came to
their food pantry and sought assistance with housing and treatment for drug abuse
after he was released from Scioto County jail. He had been there a couple of years
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before. Ms. Bentley explained that her church does not offer those types of
services, but she agreed to help advocate for Burns. At that point, she learned that
there was a warrant for his arrest. Ms. Bentley contacted Burns’s attorney, and he
told her to advise Burns to turn himself in. Ms. Bentley called the parole office on
a Friday. Ms. Bentley explained that she was out of town that day, and so she
could not get word back to Burns until Monday. Ms. Bentley explained that “we
talked with him and he said he would turn himself in and we brought him here the
next morning.”
Ms. Bentley confirmed that she has lined up a referral for Burns to a
residential facility in Ohio that provides drug and alcohol rehabilitation and mental
health services. Burns can go there once he resolves a Scioto County warrant for
failure to appear there while he was incarcerated in Kentucky. Ms. Bentley also
confirmed that the Ohio facility will provide treatment for up to 180 days and will
take Burns if he is on probation in Kentucky. The church is willing to help Burns
find a place to stay once he has completed the treatment at the facility, which
offers job training and placement so that he can afford a place to live. (V.R.
12/12/19, 1:59:04-2:03:43.)
Burns asked if he could speak. The trial court swore him in. Burns
explained that on October 17, 2019, he was released and turned himself into Scioto
County “the same day, eight and a half hours later upon walking.” (V.R. 12/12/19,
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2:04:13-2:04:26.) On October 21, 2019, he was released by Scioto County. On
October 22, 2019, he registered under “intense supervision.” Burns explained that
he had to call in seven days a week to a bonding agency and take a urine test “at
any given time” every day Monday through Sunday (V.R. 12/12/19, 2:04:29-
2:04:45.) On October 24, 2019, the trial court signed a warrant for his arrest.
Burns testified that he did as he had been told. As soon as he found out that he had
an active warrant in Greenup County, he chose to turn himself in. (V.R. 12/12/19,
02:04:49-02:05:22.)
Burns testified that:
I have the order that you signed, it says release upon
receipt of order and that’s all it says. Ok. There was no
communication for me to come into the Commonwealth
until after the stipulations were taken care of in Scioto
County.1
(V.R. 12/12/19, 2:05:35-02:05:42.)
Burns explained that he had a court date on the 8th (in Ohio), that the
bonding agency told him that he had to find a place to stay -- without a convicted
felon or drug user living there -- thus eliminating everyone he knew in Scioto
1
The video record reflects that Burns was holding and referring to a document, but it is not
further identified. We note that the agreed order modifying probation was not rendered until
October 21, 2019. The certificate of service reflects that a copy of the agreed order was served
by “hand-delivery or first-class mail” upon Burns c/o the Greenup County Jail and upon the
Scioto County Jail on October 21, 2019 -- four days after Burns left Kentucky and the same day
the Scioto County Jail released him. It is unclear whether Burns ever actually received that
order.
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County at the time. And so, he called the Presbyterian church “to make the right
choices.” (V.R. 12/12/19, 02:05:54-2:06:14.) Burns explained that he was
supposed to be sentenced there in Scioto County for a program that was court
ordered in the first place, but because of his residency, it was “made to the
Commonwealth.” (V.R. 12/12/19, 02:06:19-02:06:43.)2 At that point, the trial
judge visibly lost patience, demanding: “Is there ever an end to this testimony?”
and ordering Burns to get to the end of it. (V.R. 12/12/19, 2:06:44-02:06:50.) The
judge then proceeded to address Burns:
You know what your problem is? Your hands are too
dirty, your hands are too dirty.[3] You got too many
things going on in too many different states. You’ve got
too many cases, active cases. Now, I tried to do you a
favor and let you leave here to go over there and take
care of that, and then come back so we could get this
thing resolved, but you don’t do that. You go find a
place to live and try to get counselling services at this
Presbyterian Church instead of coming back here and
taking care of your business here. Now I don’t, you may
have had a good reason, because maybe that’s what your
bonding agent was telling you over there.
(V.R. 12/12/19, 02:06:57-2:07:39.)
2
This statement is consistent with information related by Officer Tussey at the October 17, 2019,
hearing; i.e., that Burns was supposed to go to a program in Ohio originally.
3
The doctrine of “unclean hands” is a rule of equity jurisprudence and is not applicable to the
case before us. American Ass’n v. Innis, 109 Ky. 595, 60 S.W. 388, 390 (1901) (“The maxim,
‘One who comes into equity must come with clean hands,’ is as old as courts of equity, and is the
expression of the elementary and fundamental conception of equity jurisprudence[.]”).
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All of a sudden, the judge loudly slammed his hand on the bench and
screamed, “I don’t give a damn about your bonding agent over there. I don’t care
about that.” (V.R. 12/12/19, 2:07:40-2:07:44.) The judge then continued:
All I care about is you taking care of this case in my
court per our agreement that you violated. You didn’t
come back. You were out two weeks, you were out two
weeks. You were supposed, when you got released from
Ohio, to come back here. That’s what you agreed to do.
You agreed when they released you from Scioto County,
you were going to come back here, we were going to
resolve this case, and heck we were even going to run it
concurrent with whatever you agreed over there. We
were going to run it in the same time, we just wanted to
see you get services. But no, you don’t do that, you do
your own thing, you let someone else tell you what to do,
instead of doing what I told you to do. I can’t help a guy
that won’t help himself and agree to do what he agreed to
do with me. So I don’t give a damn about your Ohio
stuff anymore, because you don’t give a damn about my
stuff.
(V.R. 12/12/19, 2:07:54-2:08:59.) The trial court abruptly revoked Burns’s
probation and told him to serve his time. The December 12, 2019, docket sheet
reflects as follows:
Rev. Hrg. held. C/W called probation officer – Tussey.
Based upon the testimony Ct. finds the Defendant
violated the terms of his release by failing to return to
Ky. to take care of his case. Ct. ordered Probation
revoked & serve original sentence.
(T.R. 223.)
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On December 17, 2019, the trial court entered an order revoking
probation. The order is largely a form which reflects that it was prepared by the
Assistant Commonwealth’s Attorney. It provides in relevant part as follows:
After reviewing the file, hearing arguments of
counsel, and being otherwise sufficiently advised the
Court finds the defendant committed the following
violations of the terms and conditions of probation:
1. Absconding probation
2. Failure to seek substance abuse evaluation.
The Court having considered whether defendant’s
violations of the terms of probation constitutes a
significant risk to prior victims or the community at
large, and whether defendant could not be managed in
the community, so finds that the defendant constitutes a
significant risk to the community at large and cannot be
properly managed in the community. The Court further
finds that graduated sanctions are inappropriate.
(T.R. 224-25.)
On January 15, 2020, Burns filed a Notice of Appeal to this Court.
On appeal, he argues that the trial court erred when it revoked his probation
without complying with the mandatory criteria set forth by KRS4 439.3106(1). We
agree. The statute provides 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
4
Kentucky Revised Statutes.
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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.
The statutory requirements are “conditions precedent” to revocation as emphasized
by Commonwealth v. Andrews, 448 S.W.3d 773, 777 (Ky. 2014).
In Andrews, the Supreme Court explained that
decisions regarding probation revocation lie within the
sound discretion of the trial judge. Id. at 777. However,
. . . the trial judge must exercise his discretion within
the confines of KRS 439.3106. Id. Accordingly, . . .
before deciding to incarcerate a probationer for violating
the terms of her probation, the trial court must consider
“[w]hether 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.” Id. at
780; KRS 439.3106(1). . . .
....
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.
McClure v. Commonwealth, 457 S.W.3d 728, 733-34
(Ky. App. 2015). A requirement that the court make
these express findings on the record not only helps ensure
reviewability of the 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.” Rasdon v.
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Commonwealth, 701 S.W.2d 716, 719 (Ky. App. 1986)
(citing Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756,
36 L. Ed. 2d 656 (1973)).
Lainhart v. Commonwealth, 534 S.W.3d 234, 237-38 (Ky. App. 2017) (emphases
added).
In the case before us, the trial court did not make any specific written
or oral findings of fact addressing the criteria of KRS 439.3106(1) at the
revocation hearing. Nor did it do so in its docket sheet order. It only found --
peremptorily, profanely, and dyspeptically -- that Burns had violated the conditions
of his probation. It did not even address the fact that he arguably had no copy of
its written order after he attempted to comply immediately, rather than four days
later when the written order was finally signed.
The findings in the written order revoking probation are not sufficient
because they merely repeat the statutory language. As we explained in Walker v.
Commonwealth, 588 S.W.3d 453, 459 (Ky. App. 2019), such conclusory
statements related to the KRS 439.3106(1) criteria are insufficient to “meet the
mandatory statutory findings necessary to revoke a defendant’s probation.”
Consequently, “under either an abuse of discretion or palpable error standard of
review, the circuit court’s decisions must be vacated for full consideration of the
statutory criteria and the entry of appropriate findings . . . .” Id.
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 We are not at all convinced that Burns’s probation should have been
revoked under the facts of this case, but nonetheless we must remand it to the trial
court for its required compliance with Andrews and KRS 439.3106.
Accordingly, we VACATE the Greenup Circuit Court’s Order
Revoking Probation and REMAND this case with directions that the trial court
properly consider the criteria set forth in KRS 439.3106(1), that it enter specific
findings of fact as required by the statute in a written order, and that it conduct
itself in a manner that comports with the rules governing proper judicial conduct as
to language, demeanor, and dignity of the tribunal.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Molly Mattingly Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Jennifer Wade Robert Baldridge
Frankfort, Kentucky Assistant Attorney General
Frankfort, Kentucky
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