TAYLOR, JUDGE
NOT TO BE PUBLISHED APPEAL FROM HARDIN CIRCUIT COURT
HON. KELLY MARK EASTON, JUDGE
ACTION NO. 13-CR-00668 OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, COMBS, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Terry Brake brings this appeal from an April 4, 2016, Order of the Hardin Circuit Court revoking Brake's probation. We affirm.
In 2013, Brake was indicted upon two counts of sexual abuse in the first degree (with a victim under twelve years of age). It appears from the record that the children were two of his step-grandchildren. In September of 2014, Brake reached a plea agreement with the Commonwealth. Under the terms of the plea agreement, Brake would enter a guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) to the amended charge of criminal attempt, unlawful transaction with a minor. The plea agreement provided that the Commonwealth would recommend a sentence of seven years' imprisonment and consequently for the sentence of imprisonment to be probated for five years. The circuit court accepted Brake's Alford plea, and he was sentenced in conformity with the plea agreement.
As a condition of Brake's probation, he agreed to not possess or view "[i]mages, which depict individuals similar to your victims (e.g. children)." In 2016, Probation and Parole Officer Travis Lampton filed a Report stating that Brake violated a condition of his probation by possessing images of children on his phone, and in particular, a photograph of a young boy wearing only his underwear.
A probation revocation hearing was held by the circuit court on March 29, 2016. At the hearing, Officer Lampton testified that around eight photographs of minors were found on Brake's phone, which included a young male child in his underwear. Brake testified that all the photographs were of his grandchildren and that the young male was his grandson.
In revoking Brake's probation, the circuit court expressed deep concern over the photograph of Brake's young grandson. The circuit court found that the grandchild "was clearly less than 12 and is clothed only with a small pair of underwear with his left arm resting near his genitals." The circuit court noted that Brake's original charges resulted from alleged sexual abuse of two step-grandchildren, both less than twelve years old. The circuit court specifically found that Brake violated the terms of his probation by possessing the photograph of the grandson. The court also concluded that Brake constituted a significant risk to his prior victims and to the community and that he could not be appropriately managed in the community. The circuit court expressed its belief that Brake's behavior evidenced that he was a continued danger to his prior victims and to other children in the community. This appeal follows.
To begin, the standard of review of a circuit court decision to revoke probation is abuse of discretion. McClure v. Com., 457 S.W.3d 728 (Ky. App. 2015). Under the abuse of discretion standard, we will not disturb the circuit court's ruling unless it "was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Com. v. Andrews, 448 S.W.3d 773, 778 (Ky. 2014) (quoting Com. v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
Brake brings two contentions of error for our review:
I. The trial court erred when it revoked appellant's probation for failure to complete sex-offender treatment after acknowledging the parties' agreement that appellant's failure to admit culpability would not result in revocation.
II. The trial court committed reversible error when it found that appellant could not be appropriately
supervised on probation and is a danger to the community.
Brake's brief at 4, 6. In particular, Brake argues that the Commonwealth agreed not to revoke his probation for refusing to admit guilt in any subsequent sex offender treatment program and that the circuit improperly relied upon same to justify revoking his probation. Additionally, Brake maintains that the circuit court erroneously determined that he could not be managed in the community and posed a threat to the community. Brake believes that graduated sanctions should have been imposed upon him.
Kentucky Revised Statute ("KRS") 439.3106 sets forth the law as to the revocation of probation:
(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.
And, KRS 439.3107 provides:
(1) The department shall, by January 1, 2012, adopt a system of graduated sanctions for violations of conditions of community supervision.
Notwithstanding KRS Chapter 533, the system shall set forth a menu of presumptive sanctions for the most common types of supervision violations, including but not limited to: failure to report; failure to pay fines, fees, and victim restitution; failure to participate in a required program or service; failure to complete community service; violation of a protective or no contact order; and failure to refrain from the use of alcohol or controlled substances. The system of sanctions shall take into account factors such as the severity of the current violation, the supervised individual's previous criminal record, the number and severity of any previous supervision violations, the supervised individual's assessed risk level, and the extent to which graduated sanctions were imposed for previous violations. The system also shall define positive reinforcements that supervised individuals may receive for compliance with conditions of supervision.
(2) The department shall establish by administrative regulation an administrative process to review and approve or reject, prior to imposition, graduated sanctions that deviate from those prescribed.
(3) The department shall establish by administrative regulation an administrative process to review graduated sanctions contested by supervised individuals under KRS 439.3108.
The Kentucky Supreme Court has interpreted the application of KRS 439.3106 and KRS 439.3107 in relation to probation revocation proceedings in Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014). Therein, the Supreme Court concluded that KRS 439.3106 sets forth new criterion that a circuit court must consider in a probation revocation proceeding. In particular, the Court held that a circuit court is mandated by KRS 439.3106(1) to determine "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 probationer cannot be managed in the community before probation may be revoked." Andrews, 448 S.W.3d at 780. As for graduated sanctions pursuant to KRS 439.3107, the Supreme Court stated that a probation officer may consider graduated sanctions for certain minor probation violations:
The language of KRS 439.3106(2) regarding "other sanctions" loosely tracks KRS 439.3107, which directs the DOC to adopt a system of graduated sanctions for "the most common types of supervision violations." Under 439.3108(1)(a), the DOC, "notwithstanding any administrative regulation or law to the contrary," has the authority to modify the conditions of probation "for the limited purpose of imposing graduated sanctions [.]" The guidelines for applying graduated sanctions are set forth in 501 Kentucky Administrative Regulations ("KAR") 6:250. . . .
The probation officer may then proceed to reviewing "the circumstances of the offender and the violations at issue to determine if the violation behavior is appropriately responded to with graduated sanctions." Id. Certain violations, such as absconding or receiving a new felony conviction, require the probation officer to submit the matter to the trial court without the possibility of imposing graduated sanctions. Id. Otherwise, the probation officer, having considered the circumstances surrounding the probationer and the violation, must make a determination as to whether graduated sanctions are appropriate. If graduated sanctions are determined to be an inappropriate response to a violation, "then the officer shall report the violation" to the trial court. Id.
By 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.
Andrews,
448 S.W.3d at 778-79 (citation omitted).
In the case at hand, the circuit court specifically considered the mandates of KRS 439.3106(1) before revoking Brake's probation. In the April 4, 2016, order, the circuit court clearly concluded that Brake violated the terms of his probation by possessing the photograph of his grandson. The court particularly noted that the grandson was only wearing underwear and that the grandson's arm was resting near his genitals. The circuit court did find that Brake violated his probation terms by possession of the photograph and not due to his inability to complete the sex offender rehabilitation program. The circuit court was aware that Brake's victims were two of his step-grandchildren both under the age of twelve and that the photograph was of his grandson also under the age of twelve. The circuit court unequivocally believed that the photograph revealed that Brake is a continued danger to his prior victims and other children in the community. Indeed, the circuit court concluded that Brake posed a significant risk to his victims and the community and that he could not be managed in the community. Additionally, any consideration by the circuit court of Brake's repeated failures to complete the sex offender treatment program was harmless at best. It is clear from the record that the photograph of the grandson, coupled with Brake's specific past criminal behavior, constituted sufficient evidence to support the circuit court's decision to revoke probation under KRS 439.3106(1). Accordingly, we cannot conclude that the circuit court erred in connection with the graduated sanctions considering the seriousness of Brake's probation violation nor did it abuse its discretion in revoking Brake's probation.
Therefore, we hold the circuit court properly revoked Brake's probation.
For the foregoing reasons, the Order of the Hardin Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Dwight Preston
Adam Cart
Elizabethtown, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky