457 S.W.3d 728
Ky. Ct. App.2015Background
- Brian McClure pleaded guilty (Dec. 2012) to burglary and theft-related offenses and received a five-year sentence that was immediately probated with drug-testing and substance-use conditions.
- Sept. 18, 2013: McClure tested positive for Suboxone; Probation & Parole issued a verbal warning and increased supervision instead of revocation.
- Less than a month later McClure provided an anomalous urine sample and, when questioned, was found to be carrying an empty syringe concealed in his pants.
- Probation revoked McClure’s probation at a Nov. 6, 2013 hearing; the court’s oral statements and a written form noted “Danger to Public — Altered Drug Screen.”
- On appeal McClure argued the trial court failed to (1) make the express findings required by KRS 439.3106(1); (2) support findings with evidence; and (3) impose graduated sanctions before revocation.
- The Court of Appeals reviewed the record under Kentucky Supreme Court guidance in Commonwealth v. Andrews and remanded because the trial court omitted an express finding on the second statutory factor (manageability in the community).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court must make express findings under KRS 439.3106(1) | McClure: court failed to expressly find both statutory factors before revoking | Commonwealth: court implicitly considered factors and revocation was within discretion | Court: Andrews requires express findings of both factors; trial court must enter them |
| Whether trial court was required to impose lesser graduated sanctions before revocation | McClure: statute requires trying lesser sanctions first | Commonwealth: statute permits but does not require lesser sanctions; court retains discretion | Court: No requirement to impose lesser sanctions first; discretion remains; prior graduated sanctions had been attempted |
| Whether evidence supported finding of "significant risk" to the community | McClure: he posed risk only to himself, not community at large | Commonwealth: attempted alteration of drug screen and continued substance use support risk to community | Court: Evidence supported a finding of significant risk and the trial court’s written/oral record reflected that finding |
| Whether trial court made an express finding that McClure was unmanageable in the community | McClure: no express oral or written finding on manageability | Commonwealth: contended trial court considered overall conduct | Court: Trial court failed to make the required express finding on manageability; omission was an abuse of discretion and remand required |
Key Cases Cited
- Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014) (trial courts must consider and make findings on both KRS 439.3106(1) factors; discretion remains)
- Southwood v. Commonwealth, 372 S.W.3d 882 (Ky. Ct. App. 2012) (standard of review for probation revocation)
- Jarrell v. Commonwealth, 384 S.W.3d 195 (Ky. Ct. App. 2012) (earlier treatment of KRS 439.3106 findings)
- Clark v. Commonwealth, 223 S.W.3d 90 (Ky. 2007) (abuse of discretion standards)
- Miller v. Eldridge, 146 S.W.3d 909 (Ky. 2004) (appellate review scope for discretionary decisions)