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HAHN v. COMMONWEALTH, 2015-CA-001815-MR. (2017)

Court: Court of Appeals of Kentucky Number: inkyco20170317317 Visitors: 6
Filed: Mar. 17, 2017
Latest Update: Mar. 17, 2017
Summary: NOT TO BE PUBLISHED OPINION ACREE , Judge . Kathleen Hahn appeals the Adair Circuit Court order revoking her probation. She challenges the sufficiency of the evidence supporting the trial court's findings of fact and conclusions of law under KRS 1 439.3106. On July 28, 2014, Hahn was indicted by an Adair County grand jury for two counts of abandonment of a minor and two counts of third-degree unlawful transaction with a minor. According to the complaint in the case, Hahn left her two chi
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NOT TO BE PUBLISHED

OPINION

Kathleen Hahn appeals the Adair Circuit Court order revoking her probation. She challenges the sufficiency of the evidence supporting the trial court's findings of fact and conclusions of law under KRS1 439.3106.

On July 28, 2014, Hahn was indicted by an Adair County grand jury for two counts of abandonment of a minor and two counts of third-degree unlawful transaction with a minor. According to the complaint in the case, Hahn left her two children, ages seven and ten, home alone for over forty-eight hours with only tap water to drink and no air conditioning. The children could not contact their mother because her telephone was out of service. The children also had numerous unexcused absences from school.

Prior to the indictment, Hahn had been arrested and then released on bond. The conditions of the bond required her to violate no laws, report to pretrial services, take random drug tests, and make all scheduled court appearances. While she was out on bond, she had several incidents of non-compliance with her conditional release including failing to appear for drug tests and testing positive for methamphetamine.

On September 23, 2014, she entered a plea of not guilty to the charges in Adair Circuit Court.

On October 6, 2014, the Commonwealth moved to revoke her bond. On the day before the revocation hearing, Hahn again tested positive for methamphetamine. At the conclusion of the hearing, the trial court revoked her bond.

On December 16, 2014, the trial court released Hahn from custody on a $5,000 surety bond, with the conditions that she be placed on home incarceration, monitored with an ankle monitor, and drug tested. She was also required to commit no further violations of the law, consume no alcohol or illegally use controlled substances.

On April 6, 2015, the Commonwealth filed a motion for bond revocation with attached letters from Premier Judicial Solutions alleging that Hahn had "multiple violations" and was "showing total disregard to what the Adair Co. Jail told her and shows total disrespect towards the court and her Bond Condition." The motion alleged that as of April 2, 2015, Hahn had not charged her home incarceration bracelet and her location was unknown.

The revocation motion was not heard because Hahn entered a plea of guilty on May 5, 2015. She agreed to a ten-year probated sentence on the condition that she commit no additional violations of the law and comply with the terms of probation, which would be supervised. The conditions of probation required her to report to the probation officer as directed, to permit the probation officer to visit her at home or elsewhere, and answer all reasonable inquiries by the probation officer and to promptly notify the probation officer of any change in her address or employment.

On August 13, 2015, the Commonwealth filed a motion for revocation of probation. Attached to the motion was a violation of supervision report from Officer Brian Brumley, stating that Hahn had failed to cooperate with Officer Brumley; that she absconded supervision; that Officer Brumley was unable to locate her at her home after multiple trips; that Hahn was unsuitable for community supervision; and that she was not a likely candidate to successfully complete supervision at that time.

At her revocation hearing, Hahn testified that she had been residing in her current home for almost two years. Hahn further testified that she received the motion for revocation on a weekend and that she contacted the Office of Probation and Parole immediately the following Monday. Officer Brumley confirmed that Hahn contacted him after receiving the revocation motion.

Following the hearing, the trial court revoked Hahn's probation. She filed a motion to reconsider, arguing that there were insufficient grounds to revoke probation. The trial court heard the motion and denied it. It then entered a revocation order detailing its findings of fact and conclusions of law. This appeal by Hahn followed.

We review a trial court's decision to revoke probation for an abuse of discretion. Lucas v. Commonwealth, 258 S.W.3d 806, 807 (Ky. App. 2008). "The test for abuse of discretion is whether 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. 1999).

Recently, the Kentucky Supreme Court explained 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." Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014). By requiring the trial court to make such a determination, "the legislature furthers the objectives of the graduated sanctions schema to ensure that probationers are not being incarcerated for minor probation violations." Id. at 779. The Court also cautioned, however, that its holding "does not upend the trial court's discretion in matters of probation revocation, provided that discretion is exercised consistent with statutory criteria." Id. at 780. "[T]he General Assembly intended the task of considering and making findings regarding the two factors of KRS 439.3106(1) to serve as the analytical precursor to a trial court's ultimate decision: whether revocation or a lesser sanction is appropriate." McClure v. Commonwealth, 457 S.W.3d 728, 732 (Ky. App. 2015).

The trial court made the following findings: that Hahn's bond was revoked on October 14, 2014, after she appeared in court and tested positive for methamphetamine; that she was granted probation on June 23, 2015 and failed to report to Probation and Parole as required; that Probation and Parole attempted to contact her on more than one occasion and was unable to do so; that she failed to comply with the conditions of her probation by refusing to obey all rules and regulations imposed by Probation and Parole and by absconding from the supervision of Probation and Parole.

The trial court also made the following conclusions of law specifically in compliance with the directive of Andrews v. Commonwealth, 448 S.W.3d 773,777 (Ky. 2014): that Hahn had failed to report to Probation and Parole as instructed; had ignored multiple messages from Probation and Parole officers instructing her to contact them; that Probation and Parole officers were unaware of her location or what activities she was engaged in; that she posed a significant risk to her prior victims (her own minor children) and to the community at large, due to her known use of methamphetamine; that she refused to cooperate with Probation and Parole officers and concealed her whereabouts during her probation period; and that she cannot be managed in the community.

Hahn raises several challenges to the trial court's interpretation of the evidence: she argues that her use of methamphetamine and the fact that Probation and Parole officers did not know her location is insufficient evidence to support a finding that she presents a risk to herself or anyone else. She points out that her prior charges related to her abandonment of the children and their truancy and are consequently not evidence that she poses a significant risk to them, and the trial court was informed that they were not in her custody at the time of the hearing. She contends her violations would not lead a reasonable person to the conclusion that anyone was ever put in danger.

Hahn likens her case to that of Helms v. Commonwealth, 475 S.W.3d 637 (Ky. App. 2015), in which a panel of this Court found the revocation of Helms's diversion to be an abuse of discretion. Id. Helms's pretrial diversion agreement contained a zero-tolerance provision which provided that any deviation from its terms would lead to automatic revocation. A panel of this Court held that the provision ran afoul of KRS 439.3601, which requires consideration of the evidence in light of the statutory criteria. The fact that Helms had violated the zero-tolerance provision by having a single positive drug test and two minor technical violations over the course of eighteen months simply did not support a finding that he was a danger to the community or could not be adequately managed in the community.

By contrast, the trial court in Hahn's case did not revoke probation automatically on the basis of a single violation of a zero tolerance provision, but instead properly exercised its discretion by considering all the evidence in light of the KRS 439.3106 factors.

All of Hahn's arguments go to the weight and interpretation to be placed upon the evidence, and these are matters solely within the discretion of the trial court. "[T]he importance of certain facts is not ours to weigh on appeal, but is properly left to the trial court's exclusive discretion. Our proper role is merely to evaluate the sufficiency of the evidence and whether an abuse of the trial court's discretion occurred. To hold, or to do, otherwise would be to invade the province of fact finding best occupied by our trial courts." McClure, 457 S.W.3d at 734. Hahn's history of methamphetamine use, her abandonment of her children, and her deliberate, repeated failures to cooperate with Probation and Parole officers until threatened with revocation all constitute evidence fully supporting the trial court's conclusion that she represents a risk to her children and to the community and that she cannot be effectively managed in the community.

The order revoking probation is affirmed.

ALL CONCUR.

FootNotes


1. Kentucky Revised Statutes.
Source:  Leagle

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