Dustin Fyffe v. Commonwealth of Kentucky

RENDERED: AUGUST 20, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1375-MR
DUSTIN FYFFE APPELLANT
APPEAL FROM LAWRENCE CIRCUIT COURT
v. HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NO. 19-CR-00104
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
REVERSING AND REMANDING
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BEFORE: CALDWELL, DIXON, AND L. THOMPSON, JUDGES.
DIXON, JUDGE: Dustin Fyffe appeals from the order setting aside his pretrial
diversion entered by the Lawrence Circuit Court on July 27, 2020. Following a
careful review of the record, the briefs, and the law, we reverse and remand.
FACTS AND PROCEDURAL BACKGROUND
Fyffe pled guilty to possession of a controlled substance in the first
degree,1 possession of a controlled substance in the third degree,2 and
possession/use of drug paraphernalia.3 Fyffe’s sentence4 was diverted for three
years. However, shortly after being placed on diversion, Fyffe violated the
conditions of his release. Subsequently, his diversion was set aside, and the prison
sentence imposed. This appeal followed.
ANALYSIS
Pretrial diversion voidance follows the same statute as probation
revocation. Richardson v. Commonwealth, 494 S.W.3d 495, 498 (Ky. App. 2015).
It is well-established, we review probation revocation orders for abuse of
discretion. Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014) (citing
Commonwealth v. Lopez, 292 S.W.3d 878 (Ky. 2009)). We will reverse only if we
find “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.
1
Kentucky Revised Statues (KRS) 218A.1415, a Class D felony.
2
KRS 218A.1417, a Class A misdemeanor.
3
KRS 218A.500(2), a Class A misdemeanor.
4
Fyffe was sentenced to three-years’ imprisonment for first-degree possession of a controlled
substance and 12 months each for third-degree possession of a controlled substance and
possession/use of drug paraphernalia.
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1999). We “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.” Blankenship v. Commonwealth, 494
S.W.3d 506, 508 (Ky. App. 2015) (citing Miller v. Eldridge, 146 S.W.3d 909, 915
(Ky. 2004)).
KRS 439.3106 provides the criteria for both revoking probation and
voiding pretrial diversion, stating:
(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)(a)-(b) (emphasis added). The Andrews court considered the
applicability of this statute to revocation proceedings, and held:
We conclude that 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
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probationer cannot be managed in the community before
probation may be revoked.
Andrews, 448 S.W.3d at 780 (emphasis added).
In setting aside Fyffe’s diversion, the trial court made incomplete
written findings as to the essential elements of KRS 439.3106. In its order, the
trial court only addressed whether Fyffe could be properly supervised in the
community and not whether Fyffe’s failure to abide by a condition of supervision
constitutes a significant risk to prior victims or the community at large.5 Thus, we
must reverse. Accordingly, we remand with instructions for the trial court to hold
a revocation hearing and make appropriate findings–preferably in writing.6 These
findings must not merely perfunctorily cite the statutory language in KRS
5
This point is conceded by the Commonwealth. Even so, the Commonwealth asserts a remand
is unnecessary because Fyffe failed to make a request to the trial court for more specific findings.
However, because KRS 439.3106 requires the trial court to make such findings, it is unnecessary
for Fyffe to request the trial court to “do its duty[.]” Anderson v. Johnson, 350 S.W.3d 453, 458
(Ky. 2011).
6
Written findings are not required if oral findings are made and are sufficient. Commonwealth
v. Alleman, 306 S.W.3d 484, 487 (Ky. 2010). However, it is well-established that courts speak
through their written orders.
A trial court “speaks only through written orders entered upon the
official record.” [Kindred Nursing Ctrs. Ltd. P’ship v. Sloan,] 329
S.W.3d 347, 349 (Ky. App. 2010). “[A]ny findings of fact and
conclusions of law made orally by the circuit court at an
evidentiary hearing cannot be considered by this Court on appeal
unless specifically incorporated into a written and properly entered
order.” Id.Castle v. Castle, 567 S.W.3d 908, 916 (Ky. App. 2019).
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439.3106. Rather, they must include proof from the record established by a
preponderance of the evidence as to how Fyffe violated the terms of his release and
the statutory criteria for revocation. Helms v. Commonwealth, 475 S.W.3d 637,
645 (Ky. App. 2015).
CONCLUSION
Therefore, and for the forgoing reasons, the order entered by the
Lawrence Circuit Court is REVERSED, and this matter is REMANDED with
instructions to hold a revocation hearing and make appropriate findings as required
by KRS 439.3106.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Kayla D. Deatherage Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Christopher Henry
Assistant Attorney General
Frankfort, Kentucky
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