NOT TO BE PUBLISHED
OPINION
KRAMER, Judge.
Melinda Bayorek appeals the Henry Circuit Court's order revoking her probation. After a careful review of the record, we reverse and remand for further proceedings because the circuit court did not consider whether Bayorek's failure to abide by a condition of her supervision, i.e., that she not use alcohol, constitutes a significant risk to prior victims or the community at large.
A. FACTUAL AND PROCEDURAL BACKGROUND
Bayorek was charged with second-degree arson and being a persistent felony offender in the second degree (PFO-2nd). The Commonwealth provided an offer on a plea of guilty, in which it offered to recommend a sentence of ten years of imprisonment on the second-degree arson charge and dismissal of the PFO-2nd charge, in exchange for Bayorek's guilty plea to the second-degree arson charge. The offer also provided that the Commonwealth would recommend probating Bayorek's sentence for five years on the conditions that she: continue to participate in treatment; take all medications as prescribed; not consume alcohol; pay restitution to the victim in the amount of $1500.00, plus 5% Clerk's fee for a total amount of $1575.00; pay court costs in the amount of $155.00; and have no contact with the victim or the victim's property. Bayorek moved to enter a guilty plea in accord with the Commonwealth's offer on a plea of guilty. The court accepted her guilty plea to the charge of second-degree arson and dismissed the PFO-2nd charge, as provided in the plea agreement. Bayorek was subsequently sentenced to ten years of imprisonment, which was probated for five years on conditions which included, inter alia, that she participate in treatment, take all medications as prescribed, not consume alcohol, and obey all rules and regulations imposed by Probation and Parole.
Approximately two years later, a Probation and Parole Officer filed a report alleging that Bayorek had violated the terms of her probation. The Probation Officer alleged that Bayorek was arrested by Louisville Metro Police in April 2013 and charged with: alcohol intoxication in a public place — 1st and 2nd; second-degree disorderly conduct; resisting arrest; and menacing. The Commonwealth moved to revoke Bayorek's probation on the grounds that Bayorek had a new misdemeanor arrest and she had used alcohol. The Commonwealth subsequently moved to supplement its motion to revoke probation on the grounds that Bayorek had entered a guilty plea to the charge of menacing in that new Jefferson District Court case, and the remaining charges against her were dismissed. However, the Commonwealth continued to seek full revocation of Bayorek's probation.
A hearing was held on the motion to revoke Bayorek's probation. The court noted on the written record that Bayorek had stipulated to violating the terms of her probation. Her probation was revoked for thirty days and her probation period was extended by six months. The court ordered her to begin serving her thirty-day period of revocation the next day at noon, ordering her to report to the Oldham County Jail at that time and if they refused to take her, then she should report to the Carroll County Jail.
The next day, a Probation Officer filed a report stating that Bayorek had violated the terms of her probation again when she arrived at the Oldham County Jail to serve her thirty-day period of revocation smelling of alcohol. When the deputy asked her if she had been drinking, Bayorek reportedly replied that she had drunk three-fourths of a beer before coming to jail. A blood alcohol test was administered, and Bayorek's blood alcohol level was 0.205, according to the Probation Officer's report. The Commonwealth thereafter moved for full revocation of Bayorek's probation on the basis that she violated the terms of her probation by drinking alcohol.
The circuit court entered an order noting that Bayorek stipulated to violating her probation by reporting to jail intoxicated. The court revoked Bayorek's probation and recommended her for shock probation. Bayorek now appeals, contending that the circuit court erred in revoking her probation because the court failed to properly apply KRS1 439.3106 sanctions other than revocation and imprisonment.
II. ANALYSIS
A circuit court's decision revoking a defendant's probation is reviewed for an abuse of discretion. See Miller v. Commonwealth, 329 S.W.3d 358, 359-60 (Ky. App. 2010). "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." Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014) (internal quotation marks and citation omitted).
Probation revocation hearings must be conducted in accordance with minimum requirements of due process of law. KRS 533.050(2) provides that the court may not revoke or modify the conditions of a sentence of probation or conditional discharge except after a hearing with defendant represented by counsel and following a written notice of the grounds for revocation or modification.
Probation revocation is not dependent upon a probationer's conviction of a criminal offense. Instead, the Commonwealth need only prove by a preponderance of the evidence that a probationer has violated the terms of probation.
Miller, 329 S.W.3d at 359 (internal quotation marks and citations omitted).
Bayorek alleges that the circuit court erred in revoking her probation because the court failed to properly apply KRS 439.3106 sanctions other than revocation and imprisonment. Pursuant to KRS 439.3106,
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 Kentucky Supreme Court recently addressed KRS 439.3106 for the first time. With regard to KRS 439.3106(1), the Court held that
the application of KRS 439.3106(1) allows the trial court to conclude with some certainty that the imposition of some other accountability measure would be fruitless, as the probationer both poses a risk and is not manageable in the community. 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 probationer cannot be managed in the community before probation may be revoked.
Andrews, 448 S.W.3d at 779-780.
During the revocation hearing in the present case, the court reviewed Bayorek's record and stated that she had many opportunities to get treatment, she received a lot of treatment but it was not helping, and the court was not "inclined to deal with her anymore, she can just be revoked." The court told Bayorek that she had "been [in court] too many times," and "there always seemed to be a problem," and the court was "tired of having to deal with it this way." Thus, the court stated that Bayorek's probation would be fully revoked. Defense counsel argued that under KRS 439.3106, the court did not have grounds to fully revoke her probation at that point. The court stated that it disagreed with defense counsel, and concluded the hearing.
Before it revoked probation, the circuit court considered whether Bayorek could be managed in the community, as evidenced by its findings that Bayorek had a lot of treatment but the treatment was not helping her. However, the court did not make any findings regarding and, therefore, did not appear to consider, whether Bayorek's failure to abide by a condition of her supervision, i.e., that she not use alcohol, constitutes a significant risk to prior victims or the community at large, as required to satisfy KRS 439.3106(1).
Alternatively, Bayorek contends that the court also failed to consider sanctions other than revocation and imprisonment, as provided in KRS 439.3106(2). That section of the statute states:
Supervised individuals shall be subject to:. . . (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 circuit court did not appear to consider appropriate sanctions other than revocation and incarceration or the risk of future criminal behavior by Bayorek. However, the court did appear to consider the need for interventions which may assist Bayorek to remain compliant and crime-free in the community when the court told Bayorek that it would recommend her for a particular program.2 Consequently, because the court did not consider all of the factors necessary to meet either KRS 439.3106(1) or KRS 439.3106(2), it abused its discretion in revoking Bayorek's probation.
Accordingly, the order of the Henry Circuit Court is reversed. The case is remanded for further proceedings consistent with this opinion.
ALL CONCUR.
