Lay v. Commonwealth

TRAVIS LAY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

No. 2021-CA-0791-MR

Court of Appeals of Kentucky

February 24, 2023

NOT TO BE PUBLISHED

APPEAL FROM LAWRENCE CIRCUIT COURT HONORABLE JOHN DAVID PRESTON JUDGE ACTION NO. 19-CR-00048

BRIEFS FOR APPELLANT: Roy A. Durham, II Frankfort, Kentucky

BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Matthew R. Krygiel Assistant Attorney General Frankfort Kentucky

BEFORE: THOMPSON, CHIEF JUDGE; DIXON AND LAMBERT, JUDGES.

OPINION

LAMBERT, JUDGE:

Travis Lay appeals from the Lawrence Circuit Court's order revoking his probation and imposing the underlying sentence of ten years' imprisonment. We affirm.

The circuit court's order, dated May 28, 2021 (and entered into the record on June 2, 2021), contains the facts and procedural history of this case, and we repeat that recitation here:

The Commonwealth called as its only Witness Billy Slone, the Probation & Parole Officer. He testified the defendant was advised of the conditions of probation on or about September 16, 2019. Prior to that time, but after a judgment granting probation was entered, the defendant was charged in a misdemeanor case for misdemeanor theft, that occurring on August 25, 2019. Two days later, he was indicted in case 19-CR-00139 for theft, burglary, and persistent felony offender. On September 18, 2019, he signed an admission for the use of suboxone without a prescription. He was scheduled to see a clinician in October, 2019, but missed that appointment and missed another appointment in September 2019. On 10-24-2019 he admitted the use of suboxone and was arrested on an indictment warrant. On 10-25-2019, he pleaded guilty to the misdemeanor charge and was sentenced to ninety days in jail, to serve thirty days. He was released from jail on January 23, 2020, and was told to report to Probation and Parole. He failed to report and never made any contact with the Probation and Parole. On 1-31-2020 he was arrested by the Ashland Police Department on a felony case for third degree burglary. He signed at or near that time an admission form for using methamphetamines. He was convicted on the felony charge in Boyd County on July 13, 2020, and sentenced to one year, but his sentence was commuted by the Governor. He was released from custody in September 2020 and was requested to make contact with Probation and Parole but did not do so. The homeowner where the defendant was supposed to be residing made contact with Probation and Parole on 10-7-2020 to state that the defendant had left the home and he did not know his whereabouts. The Probation and Parole Officer was of the opinion the defendant could not be supervised in the community as a whole and that he was a danger to himself and others. He testified that the defendant had not complied in any regard with the requirements of Probation and Parole.

A review of the record indicates the defendant was rearraigned on the charges in this case on July 2, 2019. He was released on personal recognizance on July 3, 2019. A warrant was issued for his arrest on July 23rd for failure to report for an office visit on July 2, 2019, and July 16, 2019. On August 12, 2019, the defendant was sentenced to five years for third degree burglary, and that was enhanced to ten years for a second-degree persistent felony offender charge. That was probated for a period of five years at supervised probation.

A review of the defendant's pre-sentence investigation report reveals that he was sentenced to one year for possession of controlled substance on 3-26-2017. He was sentenced on another count of possession of controlled substance first degree, on 4-21-2017, and on 7-26-17 was sentenced to 18 months for possession of controlled substance and second-degree escape, as well as a number of misdemeanor counts.

On appeal, Lay argues that the circuit court erred in failing to follow the dictates of Kentucky Revised Statute (KRS) 439.3106, which provides, in pertinent part:

(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.

We are given further guidance in our analysis by Kentucky case law. "A decision to revoke probation is reviewed 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)). "Under our abuse of discretion standard of review, we will disturb a ruling only upon finding that 'the trial judge'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)). "Put another way, 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." McClure v. Commonwealth, 457 S.W.3d 728, 730 (Ky. App. ...