Hamm v. Commonwealth, ---S.W.3d--- (Ky. App. 2012), rendered May 11, 2012, To be published
Mr. Hamm appealed his pretrial diversion revocation by the Boyd Circuit Court for his continued failure to pay child support. The diversion agreement called for Mr. Hamm to pay current child support and a portion of arrearages on a monthly basis. Three months later, a bench warrant was issued for failure to make payments. At the revocation hearing, Mr. Hamm admitted he had not made his support payments, but cited his inability to pay. He testified that he managed to earn about $40 per week, barely enough for himself, and far short of child support levels. The trial court revoked based solely on the failure to pay.The Court of Appeals held that the circuit court’s revocation was improper in light of Commonwealth v. Marshall, 345 S.W.3d 822 (Ky. 2011). Under Marshall, the trial court must consider the two Bearden v. Georgia, 461 U.S. 660 (1983), factors: 1) consider whether the probationer made sufficient bona fide efforts to pay, but has been unable to pay through no fault of his own; and 2) if so, consider whether alternative forms of punishment might serve the interests of punishment and deterrence. Id. at 823-24. The Court of Appeals agreed that Marshall applied and the trial court denied Mr. Hamm his due process rights by summarily revoking diversion based solely on his inability to pay. The trial court abused its discretion in failing to make the Bearden inquiry and appropriate findings of fact pursuant to Marshall.Trial tip: in these revocation cases for failure to pay support, provide evidence that the client’s inability to pay was not through any fault of his and be prepared to provide alternatives forms of punishment.Contributed by Brandon Jewell
