Wednesday, April 1, 2015

COA - McClure - Probation Revocation

McClure, Brian v. Commonwealth - CoA, 03/13/15, REMANDING, to be published.  

McClure entered a plea of guilty to a 5 year probated sentence in December 2012.  Less than a year later, McClure’s probation and parole officer petitioned the trial court to revoke McClure’s probation.  The probation officer testified that on September 18, 2013, McClure tested positive for Suboxone, however, the probation officer did not move to revoke at that time.  A month later, McClure was caught with an empty syringe after he was told to pull his pants down after a drug test showed an abnormal temperature.  Based upon the attempt to alter a drug screen, the trial court revoked Mr. McClure’s probation.    

The Court of Appeals found that the statute requires a trial court to consider “whether a probationer’s failure to abide by a condition poses a significant risk to prior victims or the community at large” prior to revocation.  However, the Court of Appeals stated that “Neither KRS 439.3106 nor Andrews (Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014)) require anything more than a finding to this effect supported by the evidence of record.  The trial court complied with this requirement and it owed McClure no further explanation.  The Court of Appeals did find that “while evidence existed in the record to support whether McClure could be managed within the community”, the trial court failed to make a finding on this essential second element.  The Court of Appeals held that “[u]nder the analysis in Andrews, the trial court’s decision to revoke, in the absence of this finding, constituted an abuse of discretion, and the matter must be remanded."

The Court of Appeals concluded, “On remand, the trial court shall enter express findings as to both elements of KRS 439.3106(1). Per Andrews, once the trial court has fully considered and found as to these elements, its analysis should produce a conclusion concerning whether revocation or a lesser sanction is most appropriate, thus serving both the spirit of, and the intent behind, KRS 439.3106." 

Roy A. Durham II of the Appeals Branch represented Mr. McClure on appeal.  Lisa Whisman of the Stanton office represented Mr. McClure in the trial court.

Contributed by Roy Durham