Lonnie Marcum v. Commonwealth of Kentucky

RENDERED: APRIL 23, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0734-MR
LONNIE MARCUM APPELLANT
APPEAL FROM LAWRENCE CIRCUIT COURT
v. HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NO. 18-CR-00051
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
VACATING AND REMANDING
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BEFORE: ACREE, CALDWELL AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Lonnie Marcum appeals from the revocation of his
probation on the basis that the Lawrence Circuit Court failed to make a finding that
he could not be appropriately managed in the community.
Pursuant to a plea agreement, on June 12, 2018, Marcum pled guilty
to one count of receiving stolen property under $10,000 and an amended count of
persistent felony offender in the second degree (PFO 2). The plea agreement
called for Marcum to have a total sentence of five years which would be probated
for five years, with 180 days in jail and “then drug treatment.” The judgment and
sentence were consistent with the plea agreement except the requirement of drug
treatment was changed to “[a]fter release from jail evaluation for substance abuse
issues by Probation and Parole.”
Under the conditions of his probation, Marcum was prohibited from
committing any violation of the law, class B misdemeanor or higher, and required
to follow all recommendations, requirements, and conditions of Probation and
Parole “including but not limited to referral to a drug or substance abuse program.”
Graduated sanctions were not made a condition of his probation. Marcum was
ordered to report to Probation and Parole after his release.
Marcum was released from custody on September 7, 2018. Marcum
never reported to Probation and Parole after his release.
On October 19, 2018, Marcum was arrested for DUI and driving on a
DUI suspended license, second offense. He failed to report for his court date on
December 11, 2018, and a bench warrant was issued for his arrest.
On January 8, 2019, the Commonwealth filed a motion to revoke
Marcum’s probation, attaching a violation of supervision report which detailed the
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attempts that had been made by Probation and Parole Officer Billy Sloan to contact
Marcum and Marcum’s violations of failing to report and committing DUI.
Ultimately, Marcum was taken into custody on his pending charges
and pled guilty to DUI, second offense, in exchange for a ninety-day sentence and
a fine. On March 5, 2019, Marcum’s DUI judgment and sentence was imposed.
On March 15, 2019, Marcum began an inpatient drug and alcohol rehabilitation
program through Addiction Recovery Care.
At the probation revocation hearing held on April 26, 2019, the only
testimony was provided by Officer Sloan. Officer Sloan testified that Marcum
failed to report despite being instructed to do so at the time probation was imposed
and when instructed to do so by another Probation and Parole officer who saw
Marcum when he was in court on another matter.
Officer Sloan testified he attempted to contact Marcum after he failed
to report, calling every number he had for him and leaving a message with his step-
father. Officer Sloan testified that when he conducted a home visit, Marcum’s
mother reported that she had not seen Marcum in months.
Officer Sloan also testified about Marcum’s arrest and plea in his DUI
case. He opined that Marcum’s repeated failure to report and committing a DUI
constituted violations of the terms of his probation.
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Marcum submitted a letter dated April 25, 2019, from his case
manager at Addiction Recovery Care, which was admitted into evidence. The
letter stated that Marcum had completed phase one of treatment on April 11, 2019,
and was in phase two. It explained that in his current phase Marcum participates in
twelve hours of peer support and nine hours of clinical group weekly, has bi-
weekly individual clinical sessions and three to four hours of Master’s Studies
groups. His case manager stated that Marcum planned to continue onto treatment
phase three.
Marcum admitted to violating his probation but noted he had entered
inpatient treatment on his own initiative and was compliant and participating. He
requested graduated sanctions in lieu of revocation. He proposed extending the
length of his probation and allowing him to continue with his treatment program.
The Commonwealth argued that based upon Marcum’s DUI
conviction, it had no choice but to seek revocation. However, noting Marcum was
in treatment, it neither recommended revocation nor continuance on probation,
instead stating it would leave the matter to the court’s discretion.
The circuit court announced its decision from the bench:
Alright. The problem I have is the defendant’s charge is
one that is not only a danger to himself, but a danger to
the community as a whole. Based upon that fact, I find
that he has violated the terms and conditions of his
probation, that there can be no substitute other than
incarceration, so I am going to revoke his probation.
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In a two-paragraph form order entered on April 29, 2019, the circuit
court generally found that Marcum’s violations, which were not enumerated,
“constitute a significant risk to prior victims and/or the community at large and
defendant cannot be appropriately managed in the community.” It then ordered
Marcum’s probation revoked.
Marcum acknowledges that the circuit court could make oral findings
of fact but argues that even if the court’s oral findings are sufficient to establish
that he posed a significant risk to the community, the circuit court erred in not also
making a finding that he could not appropriately be managed in the community
before revoking his probation. The Commonwealth argues that the evidence was
sufficient for revocation as Marcum could not be managed in the community
where he never reported and absconded.
In 2011, the Kentucky General Assembly enacted the Public Safety
and Offender Accountability Act, 2011 Ky. Laws Ch. 2, known as House Bill 463
(HB 463). HB 463 created several new statutes, including KRS1 439.3106, and
heavily reformed others. Commonwealth v. Andrews, 448 S.W.3d 773, 776 (Ky.
2014). The General Assembly’s intention in making these reforms was to
“maintain public safety and hold offenders accountable while reducing recidivism
1
Kentucky Revised Statutes.
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and criminal behavior and improving outcomes for those offenders who are
sentenced[.]” KRS 532.007(1).
The General Assembly’s new focus was on “rehabilitation rather than
incarceration[.]” Helms v. Commonwealth, 475 S.W.3d 637, 641 (Ky.App. 2015).
An example of this can be seen in KRS 218A.005(2) in which it declared:
Successful, community-based treatment can be used as
an effective tool in the effort to reduce criminal risk
factors. Therapeutic intervention and ongoing
individualized treatment plans prepared through the use
of meaningful and validated, research-based assessment
tools and professional evaluations offer a potential
alternative to incarceration in appropriate circumstances
and shall be used accordingly.
Consistent with this declaration, the General Assembly revised KRS 218A.275(1),
which previously gave courts the ability to provide treatment for a defendant’s first
conviction for a second or third-degree possession of a controlled substance, to
also include treatment for first-degree possession of a controlled substance
pursuant to KRS 218A.1415 and to allow treatment for subsequent possession
offenses.
The General Assembly’s focus on rehabilitation and treatment extends
to probation through the enactment of KRS 439.3106, which retains the same
language since it was created by HB 463.2 KRS 439.3106 provides as follows:
2
We quote the version in effect when Marcum’s probation was revoked. The numbering was
changed in 2019 when additional paragraphs were added which are not applicable here.
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Supervised individuals shall be subject to:
(1) 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
(2) 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 reasons why a defendant is placed on probation in the first place, that the
defendant “is in need of the supervision, guidance, assistance, or direction that the
probation service can provide[,]” may also form an appropriate basis for retaining a
defendant on probation with modified or enlarged conditions. KRS 533.020(1).
“[W]hen a probationer appears before the trial court because he has failed to
comply with the terms of probation . . . KRS 439.3106 must be considered before
probation may be revoked.” Andrews, 448 S.W.3d at 778-79. “After HB 463, a
trial court is not permitted to follow an unbending predetermined outcome [that
probation must be revoked for a violation] but must consider the danger to the
defendant's victim or the community and the possibilities of rehabilitation in the
community.” Helms, 475 S.W.3d at 644.
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On appeal after revocation of probation, we “determine whether the
trial court properly considered KRS 439.3106(1) before revoking the defendant’s
probation.” Commonwealth v. Gilmore, 587 S.W.3d 627, 629 (Ky. 2019). “If the
trial court considered the statute, we then review whether its decision to revoke
probation was an abuse of discretion.” Id. “The test for abuse of discretion is
whether the trial judge’s decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999).
In terms of the findings required under KRS 439.3106(1), we must
determine “[w]hether 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 v. Commonwealth, 457 S.W.3d 728, 732 (Ky.App. 2015). Both findings
under KRS 439.3106(1) are necessary before probation may be voided. Burnett v.
Commonwealth, 538 S.W.3d 322, 324-25 (Ky.App. 2017).
If 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
and the statutory criteria for revocation has been met.
Helms, 475 S.W.3d at 645.
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Specific findings of fact addressing the statutory criteria may be either
written or oral. Commonwealth v. Alleman, 306 S.W.3d 484, 487-88 (Ky. 2010).
Appellate courts should “look to both the written and oral findings in conjunction
with one another and not separately in a vacuum.” Gilmore, 587 S.W.3d at 630.
However, a lack of oral findings combined with “conclusory [written] statements
on . . . 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).
The recent case of Gilmore provides an example of a sufficient
combination of oral and written findings:
The trial court made several specific findings from the
bench regarding Gilmore’s probation violations which
were supported by the evidence: (1) that she tested
positive for methamphetamine, (2) that she absconded
from probation, (3) that she admitted to committing other
crimes while absconding, (4) that she refused alternative
treatment plans offered by her probation officer, (5) that
she provided false information to her probation officer,
(6) that she failed to cooperate with her probation officer,
and (7) that she had picked up additional charges in the
interim.
Gilmore, 587 S.W.3d at 630. The circuit court then announced that it would “enter
the order revoking, make factual findings consistent with the need for
incarceration, and that I cannot adequately supervise her within the community.”
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Id. The Kentucky Supreme Court explained that “[w]hile not specifically
reiterating the exact language of KRS 439.3106(1), the trial court’s oral findings
explain the reasons Gilmore’s probation was revoked and emphasize that a ‘need
for incarceration’ exists and that the trial court ‘cannot adequately supervise her
within the community.’” Gilmore, 587 S.W.3d at 630-31.
The written order set out specific findings of numerous violations and
determined there was probable cause for revocation. Id. at 629. It then tracked the
requisite statutory language by stating “[t]he Commonwealth has convincingly
established that the Defendant’s failure to abide by conditions of supervision
constitute a significant risk to prior victims or the community and cannot be
successfully managed in the community.” Id. at 631 (footnote omitted).
The defendant argued “both the written and oral findings fail to meet
the statutory criteria because any reference to the statute was ‘conclusory’ and
‘without reference to any factual basis for support.’” Id. The Court rejected that
argument, explaining:
In conjunction with its remarks during the revocation
hearing, the trial court’s written order shows that the
court considered all the evidence and the specific
requirements of KRS 439.3106(1) before deciding to
revoke Gilmore’s probation. This decision was
supported by the evidence of record and thus, no abuse of
discretion occurred.
Id.
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The oral and written findings regarding revocation of Marcum’s
probation, in contrast, fail to form a cohesive whole showing that the circuit court
considered and ruled upon both parts of KRS 439.3106(1). Certainly, the circuit
court’s oral statement that “defendant’s charge [of DUI] is one that is not only a
danger to himself, but a danger to the community as a whole” and was a violation
of the terms of his probation was adequately supported by the record and in
conjunction with its written findings was adequate to establish that the circuit court
found that Marcum was a significant risk to the community. The same cannot be
said regarding whether Marcum could be managed in the community.
The circuit court made no statement in its oral findings regarding
whether Marcum could be managed in the community. While the circuit court’s
oral statement that “there can be no substitute other than incarceration,” may
appear similar to the pronouncement in Gilmore, the circuit court failed to make
findings that connected a need for incarceration to an inability to manage Marcum
in the community. In Gilmore, there were specific findings that the probationer
absconded, refused alternative treatment, and continued to use drugs and accrue
additional charges. With only a finding which related to Marcum’s DUI, it is
unclear whether Marcum’s failure to report figured into the circuit court’s calculus
or whether the circuit court only wished to punish him with a “zero-tolerance”
approach based on the seriousness of his DUI violation.
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The lack of oral findings regarding whether Marcum is manageable in
the community cannot be saved by considering the circuit court’s written findings
as they merely contain a recitation of the statutory language in KRS 439.3106(1)
without findings specific to Marcum. These written findings are exactly the type
of perfunctory recitation of the statutory language which our Courts have
repeatedly confirmed are insufficient.
While we agree with the Commonwealth that evidence existed in the
record to support a finding that Marcum could not be managed in the community,
it is the circuit court’s responsibility to make all findings, and we will not affirm
based on what the circuit court could have done. In the absence of an explicit
required finding to that effect, revocation was an abuse of discretion. See
McClure, 457 S.W.3d at 733-34.
The reforms to our probation system will mean little if judges
continue to immediately proceed to revocation, using the statutory language to
justify the exact same actions they would have taken before the reforms made by
HB 463 rather than carefully considering the individual circumstances of each
probationer and what measures can be taken to help rehabilitate them. While we
could conclude our analysis here, we wish to clarify some of the alternative options
the circuit court had to revocation.
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KRS 439.3106(2) provides that probation violations can be addressed
through “[s]anctions . . . appropriate to the severity of the violation behavior[.]”
This can include, when needed and available, “interventions which may assist the
offender to remain compliant and crime-free in the community.” KRS
439.3106(2).
A circuit court can modify probation to require that a defendant
complete an alternative sentence if it is “in the best interest of the public and
defendant[.]” KRS 533.010(6). Among the options available for such an
alternative sentence, a circuit court can order a defendant to complete “a residential
treatment program for the abuse of alcohol or controlled substances[,]” with
specific mandatory conditions including that the defendant: “Undergo mandatory
drug screening during term of probation; . . . [and] [u]ndergo aftercare as required
by the treatment program[.]” KRS 533.010(6)(d); KRS 533.010(8)(d)1, 3. Circuit
courts also have other alternative sentencing options, including requiring the
defendant, for a period of up to twelve months, to reside in a halfway house, serve
home incarceration, or serve jail time, with accompanying additional mandatory
conditions. KRS 533.010(6)(a)-(c); KRS 533.010(8)(a)-(c).
Another option was to extend the length of Marcum’s probation.
Pursuant to KRS 533.020(4), the trial court could not unilaterally extend the length
of time Marcum was on probation beyond the five years already specified because
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the only exception to this, to permit payment of restitution, was not applicable to
him. However, as explained in Commonwealth v. Wright, 415 S.W.3d 606, 611
n.3 (Ky. 2013), which relied on Commonwealth v. Griffin, 942 S.W.2d 289, 291-92
(Ky. 1997), “[i]t is worth noting that even without a finding of necessity, a
probationer may knowingly and voluntarily agree to an extension of probation
beyond five years, for example to avoid revocation of probation.” Marcum
proposed extending the length of his probation to avoid revocation, thus enabling
the circuit court to choose this option as an alternative.
If drug addiction is at the root of Marcum’s criminal behavior,
requiring Marcum to complete an inpatient drug treatment program could have
been an appropriate response in keeping with the rehabilitative purposes of HB
463. Although Marcum’s violations are more serious than those of the defendant
in Helms, Marcum also admits he has an addiction problem, and “[t]he record is
devoid of any evidence that [Marcum] would not benefit from drug treatment or
that he would not cooperate in such treatment.” Helms, 475 S.W.3d at 645. In
fact, there was evidence to the contrary. Beyond simply stating he would
cooperate with treatment, Marcum was already receiving inpatient treatment, had
completed phase one, had commenced phase two, and planned to continue onto
phase three. However, the circuit court might also question whether Marcum was
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sincere in his efforts, or whether he was only attempting treatment to avoid
revocation. See Andrews, 448 S.W.3d at 780-81.
The decision to retain a defendant on probation does not mean that
such a defendant’s probation simply must continue as if no violations were
committed. The circuit court had many options to address Marcum’s violations
without revoking his probation if it believed he could appropriately be managed in
the community.
While we have clarified some of the options the circuit court has on
remand, the ultimate decision as to whether Marcum’s probation should be
revoked or continued is not ours to make. “While HB 463 reflects a new emphasis
in imposing and managing probation, it does not upend the trial court’s discretion
in matters of probation revocation, provided that discretion is exercised consistent
with statutory criteria.” Andrews, 448 S.W.3d at 780. “Nothing in [KRS
439.3106] or in the Supreme Court’s interpretation of it requires the trial court to
impose lesser sanctions prior to revoking probation.” McClure, 457 S.W.3d at
732. See also Aviles v. Commonwealth, 17 S.W.3d 534, 536-37 (Ky.App. 2000)
(explaining that trial courts retain the discretion under KRS 533.010 to determine
that probation may not be in the best interest of the public).
Accordingly, we vacate the revocation of probation and remand for
the Lawrence Circuit Court to make individualized findings as to whether
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Marcum’s violations of the conditions of his probation mean that he is a danger to
the community and cannot be appropriately managed in the community pursuant to
KRS 439.3106(1) or whether alternative sanctions could be appropriate under KRS
439.3106(2).
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Erin Hoffman Yang Daniel J. Cameron
Assistant Public Advocate Attorney General of Kentucky
Department of Public Advocacy
Frankfort, Kentucky Kenneth Wayne Riggs
Assistant Attorney General
Frankfort, Kentucky
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