Jeffery Dutton v. Commonwealth of Kentucky

RENDERED: OCTOBER 27, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1441-MR
JEFFERY DUTTON APPELLANT
APPEAL FROM POWELL CIRCUIT COURT
v. HONORABLE LISA HAYDEN WHISMAN, JUDGE
ACTION NO. 20-CR-00035
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND MCNEILL, JUDGES.
DIXON, JUDGE: Jeffery Dutton appeals the order of the Powell Circuit Court
revoking his probation, entered November 2, 2022. Following a careful review of
the briefs, record, and applicable law, we affirm.
BACKGROUND FACTS AND PROCEDURAL HISTORY
On June 9, 2021, Dutton pled guilty to being a convicted felon in
possession of a handgun1 and was sentenced to five years of imprisonment
probated for five years. Fifteen days later, on June 24, 2021, his probation officer
filed a violation of supervision report alleging that Dutton had been arrested for
misdemeanor possession of a controlled substance and had not complied with his
obligation to report his arrest. Dutton subsequently tested positive for
methamphetamine. At the ensuing hearing, Dutton stipulated to the positive test,
and the court found him to be in violation of his supervision consistent with the
report. Dutton’s probation was partially revoked, and he was ordered to “enroll in
Comp Care IOP [intensive out-patient] and complete recommendations.”
A second violation of supervision report was filed on September 15,
2021, stating that Dutton had been discharged from IOP on medical leave due to
his ongoing opioid pain treatment and concerns that intermittent delusional
thinking would preclude him from completing the program. Dutton stipulated he
had failed to complete IOP, and by agreement of the parties, his probation was
partially revoked and the IOP requirement removed.
A third violation of supervision report was filed on February 9, 2022,
asserting that Dutton had tested positive for several controlled and illegal
1
Kentucky Revised Statutes (KRS) 527.040.
-2-
substances. Dutton did not dispute the positive drug screens at his hearing but
requested that he be permitted to attend treatment in lieu of revocation. Partially
revoking his probation, the court ordered that he be remanded to custody until he
could be transferred to a long-term treatment program for a minimum of six
months.
Dutton entered residential treatment on April 7, 2022; however, he
was discharged one day later and, as a result, a fourth violation of supervision
report was filed on April 21, 2022. Per the discharge summary, which was quoted
by the probation officer in his report, due to his “inability/unwillingness to
participate in the program[,]” Dutton was being medically discharged “until he can
get his medical concerns verified and get cleared by his physician to participate” in
long-term recovery. The provider explained that though Dutton complained that
pain in his legs prohibited him from fully participating in the program, staff had
observed a marked improvement in movement after he was informed of the
discharge. At the revocation hearing, citing his inability to walk, Dutton admitted
that he had not completed treatment. The parties agreed his probation would be
partially revoked until he could enter a facility equipped to meet his medical needs.
On June 23, 2022, Dutton was transferred to Mountain Recovery to begin
treatment.
-3-
On August 4, 2022, the violation of supervision report at issue herein
was filed alleging that Dutton had failed to complete treatment. The probation
officer stated that Dutton had been discharged from Mountain Recovery on July
22, 2022, purportedly due to a stroke – though Dutton’s medical records indicated
he was hospitalized for pneumonia – and that he had subsequently transferred to
Revive Recovery, a 30-day treatment facility. The probation officer further
reported that a nurse with Mountain Recovery “got the idea [Dutton] was
pretending to be sick” because he refused to get out of his wheelchair but was
observed walking “[u]nbeknownst to him.” At the revocation hearing on
November 2, 2022, the probation officer – the only witness – testified in
conformity with his report, adding that Dutton was observed playing cornhole
without his wheelchair by the staff at Mountain Recovery.
Dutton argued that he was not in violation of his probation since his
discharge from Mountain Recovery was beyond his control and he was in
treatment at Revive. In support, he submitted records showing that he was seen by
the local hospital emergency department on July 19, 2022, for stroke-like
symptoms, including a facial droop, and that he was diagnosed and treated for
pneumonia over the ensuing week. He also introduced case notes and a discharge
summary from Mountain Recovery. The case notes indicate that while Mountain
Recovery initially discharged him only temporarily due to his hospitalization, it
-4-
was later decided that “his medical needs outweigh[ed] his [substance use
disorder]” and that he would not be readmitted until he obtained further medical
treatment. The discharge summary explained that:
Mr. Dutton seems to be having serious medical issues.
At this moment he is admitted to [the hospital]. In our
most recent treatment team meeting[, it] was decided that
Mr. Dutton’s medical issues are hindering any attempts
we have made to treat his [substance use disorder]. At
this time the decision has been made to medically
discharge Mr. Dutton.
After arguments, the court expressed concerns that Dutton was
attending only a 30-day program and that, by his own admission, he had failed to
report his new address to his probation officer, noting that Dutton cannot be
supervised when his location is unknown. The court found the testimony
compelling that Dutton resisted physical accommodations but was conversely able
to engage in recreational activities, given his history and the assurance that
Mountain Recovery would be able to meet his medical needs. Additionally,
though acknowledging that Dutton was not at fault for becoming ill or being
hospitalized, the court concluded that since treatment ordinarily resumes after the
resolution of an ailment, his conduct prior thereto was the impetus to his discharge
from Mountain Recovery. Ultimately, the court entered an order finding that:
Dutton had violated the terms of his release by absconding from supervision and
failing to complete treatment; his failure to comply posed a significant risk to the
-5-
community; and he could not be managed in the community. His probation was
revoked, and this appeal followed. Additional facts will be introduced as they
become relevant.
STANDARD OF REVIEW
To revoke probation, a court must determine by a preponderance of
the evidence that the probationer failed to comply with the conditions of
supervision, that said failure constitutes a significant risk to prior victims or the
community, and that the probationer cannot be appropriately managed in the
community. KRS 439.3106(1). We review a court’s decision for an 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)). An abuse of discretion
occurs if the court’s decision was “arbitrary, unreasonable, unfair, or unsupported
by sound legal principles.” Id. (quoting Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999)).
LEGAL ANALYSIS
First, citing Keith v. Commonwealth, 689 S.W.2d 613 (Ky. App.
1985), Dutton argues that his probation could only be revoked if he willfully
violated its terms and, since he complied to the extent possible, the court abused its
discretion. In furtherance of this claim, Dutton contends that the court’s finding
that he was discharged due to his conduct was unfounded and that there was no
-6-
evidence that Revive, which he entered on advice of counsel, could not
accommodate a six-month program. Likewise, Dutton asserts that there were no
facts or testimony to support that he absconded supervision when he believed his
probation officer was notified of his transfer by treatment center staff. Given the
totality of the circumstances, we cannot say the court abused its discretion.
Regardless of why Dutton left Mountain Recovery, Dutton admitted
that Revive was only a 30-day program and offered no evidence that it would, in
fact, accommodate the ordered six-month treatment. Though Dutton argues he
cannot be in violation because he, like the probationer in Keith, relied in good faith
on counsel’s advice, we are not persuaded. Keith’s terms of release required that
he voluntarily commit himself for psychiatric treatment and then report to
probation upon his release; however, unexpectedly, the hospital staff determined
commitment was not appropriate. Id. at 614. When Keith informed his counsel of
this development, he was advised to wait to report until everything was
“straightened out[.]” Id. Reversing the order revoking, a panel of this court noted
that Keith had in good faith relied on counsel’s advice that he was not required to
report. Id. at 615.
Here, unlike Keith, there was no ambiguity in what was required of
Dutton when he was specifically ordered to complete a six-month program and,
therefore, it was not reasonable for him to rely on advice to enter only a 30-day
-7-
program. Similarly, we reject the contention that Dutton’s reliance on the
treatment center to notify his probation officer of his transfer constitutes a defense
when he was the obligated party and the evidence demonstrates that his probation
officer was unaware of his location.
Next, citing Helms v. Commonwealth, 475 S.W.3d 637, 645 (Ky. App.
2015), Dutton argues that the barebones findings of the court that he posed a
significant risk to the community and could not be managed therein are
insufficient. Though in Helms we stated that a court “perfunctorily reciting the
statutory language in KRS 439.3106 is not enough[,]” we have repeatedly clarified
that all that is necessary is that the findings be supported by the record. Id.;
Kendrick v. Commonwealth, 664 S.W.3d 731, 734-35 (Ky. App. 2023); New v.
Commonwealth, 598 S.W.3d 88, 90-91 (Ky. App. 2019). Here, ample support
exists in that Dutton repeatedly violated the terms of his supervision by testing
positive for drugs on two occasions, being arrested on two occasions failing to
complete treatment that he had agreed to attend, being discharged by three
treatment providers, failing to report pertinent information to his probation officer
on three separate occasions, and failing to engage in a compliant treatment
program. Consequently, we find no error.
Finally, Dutton contends that the court erred by not considering
graduated sanctions since he was not at fault for being discharged from Mountain
-8-
Recovery, and failing to contact a probation officer is only a minor violation. We
do not agree. The court’s oral and written findings reflect its conclusion that
continued efforts to provide Dutton needed substance use treatment in the
community would be fruitless given his history of non-compliance. Furthermore,
“[n]othing 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 v. Commonwealth, 457 S.W.3d 728, 732 (Ky. App. 2015). Rather, the
Supreme Court has expressly held that revocation is within the discretion of the
court “provided that discretion is exercised consistent with statutory criteria.”
Andrews, 448 S.W.3d at 780. Because the court found that Dutton posed a
significant risk to the community and could not be managed therein, as required by
KRS 439.3106(1), and even assuming it did not consider graduated sanctions, the
court acted within its discretion in revoking probation.
CONCLUSION
Therefore, and for the foregoing reasons, the order of the Powell
Circuit Court is AFFIRMED.
ALL CONCUR.
-9-
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Kayley V. Barnes Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
-10-