Friday, June 12, 2015

KYCOA - Lederer - Probation Revocation

Aaron Lederer v. Commonwealth - COA, 6/12/15, not to be published 

The Court reversed and remanded the trial courts revocation order revoking Mr. Lederer’s five year sentence for failing to report. Mr. Lederer was only a few months away from completing his probation at the time of his revocation. The Court found that the trial court did not follow “the new state of the law” pursuant to Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014), and KRS 439.3106(1) as to whether the violation constitutes a significant risk to prior victims or the community or whether the defendant can be managed in the community. Of particular interest in this case is footnote 3 where the court found the following:

The Commonwealth asserts Lederer did not properly preserve his argument that the trial court failed to make appropriate findings under KRS 439.3106. The record demonstrates that Lederer’s counsel did ask the court to consider sanctions other than revocation and incarceration based on the common nature of the violation and Lederer’s history while on probation. Even assuming this issue was not properly preserved, the trial court’s failure to consider KRS 439.3106 certainly constitutes palpable error in light of the Supreme Court’s explicit directive to do so under Andrews. See  Kentucky Rule of Criminal Procedure (RCr) 10.26.  

(emphasis added). 

The Court is explicitly saying that even if trial counsel does not object to such issues it will not be detrimental to the defendant on appeal. 

Contributed by Jason Apollo Hart