Robert Ray Perry v. Commonwealth of Kentucky ( 2022 )

RENDERED: APRIL 8, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0676-MR
ROBERT RAY PERRY APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NO. 19-CR-001964
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
REVERSING
AND REMANDING
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BEFORE: GOODWINE, MAZE, AND MCNEILL, JUDGES.
MAZE, JUDGE: Appellant Robert Ray Perry (Perry) appeals from an order of the
Jefferson Circuit Court, revoking his probation. Having reviewed the record and
the relevant law in this case, we conclude that the trial court’s order revoking
Perry’s probation must be reversed and remanded due to a lack of essential
findings.
Perry was indicted by a Jefferson County grand jury on charges of
criminal attempt murder and assault in the first degree. On November 15, 2019,
the trial court accepted Perry’s plea of guilty to the amended charge of assault in
the first degree under extreme emotional disturbance. The remaining charge of
criminal attempt murder was dismissed without prejudice.
Following a formal sentencing hearing on January 7, 2020, the trial
court entered its judgment of conviction and sentence order granting probation.
Perry was sentenced to five years probated pursuant to several conditions,
including compliance with all conditions imposed by the Department of
Corrections and Probation and Parole. However, on April 2, 2021, a report was
generated by Probation and Parole, stating that Perry had absconded from
supervision by failing to report for a period of some three months. Perry stipulated
to the violation, and a telephonic revocation hearing was held on May 10, 2021.
Perry waived the taking of testimony and the matter proceeded with arguments of
counsel only.
The trial court then concluded on the record:
Here’s the problem, we, we, did go out on a limb
and it doesn’t really matter whether the Commonwealth
did or not because they’re not the ones that have the
ultimate responsibility, uh, for making the decision and
they’re not the ones that the public comes to when
something goes horribly wrong.
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In this case, this was a horrible incident, and it was
a serious injury. It a [sic] shooting. It wasn’t
contemporaneous with the, the event so there, there
wasn’t a defense of others that would fly. And based on
Mr. Perry’s lack of record and based on his age and
based on the circumstances, you know, the Court took the
chance, and my problem is, did he get arrested on
something new? No. Do I know what his behavior was
during the course of this time? No. Do I know where he
was? No. Was there accountability on his part? No.
Um, you know, I get the fact that maybe for a period of
time he lost his telephone. He knew where probation and
parole was. And quite honestly, if I thought I was going
to prison if I didn’t call, I’d be beating on the door.
There’s no record of him calling and you know, so
frankly, I don’t know whether he did or not, but
everything says he did not.
So, can I find that he’s a danger? He was
dangerous when he committed this, and I don’t know
what he’s been doing since. I don’t know where he’s
been and it’s never easier to report than it is now. I
mean, I cannot believe that Mr. Perry is so isolated that
there is not a human being that he’s aware of that has a
telephone who wouldn’t have allowed him to make a
two-minute phone call when he needed to and that didn’t
happen. And for somebody as old as he is, he is
incredibly immature about this, but that immaturity led to
what happened once before and you know I, Mr.
Drabenstadt was around, Ms. Jackson was not, when
Judge Tommy Knopf was here. He always had this
saying, “I’m incredibly liberal on the front end, granting
probation, but you have a real responsibility when I do
that, to live up to it. And if you don’t, um, then I’m not
so liberal on the back end.”
And in this case, I have a violent offense that was
committed, somebody who was given a substantially
reduced sentence, and a lot of trust was placed in him and
he violated that trust at a time when it’s never been
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easierto keep in contact. So, for all those reasons, I find
that right now, he is not appropriate to remain on
probation. He is to report to jail tomorrow morning, at 9
o’clock.
In its written order, entered that same date, the trial court merely
stated that Perry’s probation was revoked, and he was sentenced to serve five
years. Perry now appeals from that order.
As an initial matter, the Court must address the Commonwealth’s
argument that the fact that Perry was granted shock probation since the filing of
this appeal renders the issues presented moot. This precise issue was the subject
under consideration in Bowlin v. Commonwealth, 357 S.W.3d 561 (Ky. App.
2012). In that case, Bowlin’s conditional discharge had been revoked based upon
failure to remain current on his child support obligation. He appealed the
revocation, arguing that the circuit court erred in so doing because the
Commonwealth had not shown that his failure to pay was willful and because the
court had failed to consider alternatives to incarceration. However, within months
of the revocation, Bowlin was granted shock probation.
The Court concluded that Bowlin’s appeal was not moot for two
reasons. First, the Commonwealth could still move to revoke his shock probation
based on failure to pay child support. Second, even if the Court had determined
that the appeal was moot, the case would have fallen squarely within the exception
set forth in A.C. v. Commonwealth, 314 S.W.3d 319, 327 (Ky. App. 2010) (quoting
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Philpot v. Patton, 837 S.W.2d 491, 493 (Ky. 1992)), because the issues were
“capable of repetition, yet evading review.” Thus, as Perry could clearly be
subject to having his shock probation revoked based on failure to report, this Court
will proceed with a discussion of the merits of this appeal, the trial court’s alleged
failure to make statutory findings.
As stated in Blankenship v. Commonwealth, 494 S.W.3d 506, 508
(Ky. App. 2016):
The appellate standard of review of a decision to revoke
a defendant’s probation is whether the trial court abused
its discretion. Lucas v. Commonwealth, 258 S.W.3d 806,
807 (Ky. App. 2008). To amount to an abuse of
discretion, the trial court’s decision must be “arbitrary,
unreasonable, unfair, or unsupported by sound legal
principles.” Clark v. Commonwealth, 223 S.W.3d 90, 95
(Ky. 2007), quoting Commonwealth v. English, 993
S.W.2d 941, 945 (Ky. 1999). And an appellate court 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 facts to the law. Miller v. Eldridge, 146 S.W.3d 909,
915 (Ky. 2004).
KRS1 439.3106(1) provides that defendants on probation 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
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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.
In Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014), the Court
addressed the necessity for a trial court’s findings with regard to revocation
proceedings. The Court concluded that, “[b]y requiring trial courts to determine
that a probationer is a danger to prior victims or the community at large and that
he/she cannot be appropriately managed in the community before revoking
probation, the legislature furthers the objectives of the graduated sanctions schema
to ensure that probationers are not being incarcerated for minor probation
violations.” Id. at 779.
In Andrews’s case, the trial court, although doubting the applicability
of the statute, did make the required findings on the record. The Court found that
the trial court did not abuse its discretion since it considered multiple factors,
including the statutory criteria. The Court held that, “although Andrews’s situation
was not clear-cut and another judge may have opted for a lesser sanction, the trial
court’s decision to revoke Andrews’s probation was neither arbitrary nor
unreasonable. The trial court acted within its discretion in revoking Andrews’s
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probation under KRS 439.3106(1), and that decision will stand.” Id. at 781. As
expected, the Court’s ruling in Andrews resulted in a flurry of appellate litigation.
See, e.g., Brann v. Commonwealth, 469 S.W.3d 429 (Ky. App. 2015).
In Helms v. Commonwealth, 475 S.W.3d 637, 645 (Ky. App. 2015),
the Court cautioned that, “[i]f the penal reforms brought about by HB 463 are to
mean anything, perfunctorily reciting the statutory language in KRS 439.3106 is
not enough. There must be proof in the record established by a preponderance of
the evidence that a defendant violated the terms of his release.” In McClure v.
Commonwealth, 457 S.W.3d 728, 733 (Ky. App. 2015), the Court recognized that
there was substantial support in the trial court record for its finding that “a person
who would go to such lengths to continue using a substance he was forbidden to
use under penalty of five years in prison posed a significant risk to, and was
unmanageable within, the community in which he lived.” Nevertheless, it
remanded the matter to the trial court to make “express findings as to both
elements of KRS 439.3106(1).” Id. at 734 (emphasis added). See also
Blankenship, 494 S.W.3d at 509 (“[T]rial courts must consider and make findings
– oral or written – comporting with KRS 439.3106(1).”); Lainhart v.
Commonwealth, 534 S.W.3d 234, 238 (Ky. App. 2017) (“A requirement that the
court make these express findings on the record not only helps ensure reviewability
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of the court decision, but it also helps ensure that the court’s decision was
reliable.”).
In this case, the record reflects that Perry’s counsel made a partial
recitation to the trial court of the elements that it would have to find in order to
revoke his probation. Nevertheless, the court failed to make oral or written
findings that Perry’s failure to report to his probation officer presented a
“significant risk” to the shooting victim or to “the community at large,” or that he
was unmanageable in the community. Indeed, the closest that the court came to
making a finding as to the risk posed by Perry’s failure to report was the statement
that he was dangerous at the time he committed the offense.
The trial court focused on the nature of the offense, calling it a
“horrible incident” and “a serious injury.” At the original sentencing hearing held
on January 7, 2020, the court recognized that the shooting occurred
contemporaneously with Perry’s observation of abuse inflicted upon his female
friend by the shooting victim. However, at the time of the revocation hearing, the
court found that the events were not contemporaneous. The trial court also
considered the breach of trust inflicted by Perry when he failed to comply with the
conditions of his probation. The trial court failed to make any finding whatsoever
as to whether Perry was unmanageable in the community. This is simply not the
type of prospective consideration required by the statute. Indeed, in Walker v.
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Commonwealth, 588 S.W.3d 453, 459 (Ky. App. 2019), the Court found that the
trial court’s failure to make the statutorily required findings, either orally or in
writing, warranted reversal “under either an abuse of discretion or palpable error
standard of review . . . .” (Emphasis added.) See also Compise v. Commonwealth,
597 S.W.3d 175 (Ky. App. 2020).
Such failure to make findings forces the reviewing Court to attempt to
discern the trial court’s basis for its decision from its comments on the record.
Findings are therefore essential for purposes of ensuring reviewability. Lainhart,
534 S.W.3d at 238. Thus, we conclude that the trial court’s failure to make the
findings of fact required by KRS 439.3106(1) constitutes an abuse of discretion.
Accordingly, we reverse the trial court’s order revoking probation and
remand the matter for entry of “express” findings as to whether Perry’s failure to
comply with the conditions of his probation constitutes a “significant risk” to
“prior victims” or the “community at large,” and whether he can be “appropriately
managed in the community.”
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Christopher B. Thurman Daniel J. Cameron
Louisville, Kentucky Attorney General of Kentucky
Joseph A. Beckett
Assistant Attorney General
Frankfort, Kentucky
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