RENDERED: AUGUST 28, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-001066-MR AND NO. 2019-CA-001081-MR

KATHRYN SWENSON APPELLANT

APPEALS FROM HARDIN CIRCUIT COURT

v. HONORABLE KELLY MARK EASTON, JUDGE

ACTION NOS. 18-CR-00022 AND 18-CR-00244

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, JONES, AND KRAMER, JUDGES.

KRAMER, JUDGE: Pursuant to an order entered July 8, 2019, the Hardin Circuit 

Court found Kathryn Swenson in violation of her probation. In lieu of having her 

probation consequently revoked, Swenson had requested a graduated sanction 

consisting of “up to” twelve months’ incarceration, suspended upon condition that 

she complete “a long-term rehab” program for drug addiction. The circuit court 
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denied Swenson’s request, however, and ordered Swenson to serve the term of her 

previously probated sentence, i.e., twenty years’ imprisonment, with eligibility for 

parole upon serving twenty percent. Swenson now appeals, arguing her probation 

was solely revoked because the circuit court unfairly enforced what she 

characterizes as an unwritten “zero tolerance policy” for drug use associated with 

her probation. In other words, Swenson’s claim is that her probation was only 

revoked because she used methamphetamine on one occasion during her probation. 

Having thoroughly considered the record, her arguments lack all merit; hence, we 

affirm.

We review probation revocation orders under the abuse of discretion 

standard. Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014). We will 

reverse only if we find “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) (citations omitted). We “will not hold a trial court to 

have abused its discretion unless its decision cannot be located within the range of 

permissible decisions allowed by a correct application of the facts to the law.” 

Blankenship v. Commonwealth, 494 S.W.3d 506, 508 (Ky. App. 2015) (citing 

Miller v. Eldridge, 146 S.W.3d 909, 915 (Ky. 2004)).

Kentucky Revised Statute (KRS) 439.3106 provides the criteria for 

revoking probation, stating in relevant part:
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Supervised individuals shall be subject to:

(a) Violation revocation proceedings and possible 

incarceration for failure to comply with the 

conditions of supervision when such failure 

constitutes a significant risk to prior victims of the 

supervised individual or the community at large, 

and cannot be appropriately managed in the 

community; or

(b) Sanctions other than revocation and 

incarceration as appropriate to the severity of the 

violation behavior, the risk of future criminal 

behavior by the offender, and the need for, and 

availability of, interventions which may assist the 

offender to remain compliant and crime-free in the 

community.

KRS 439.3106(1). 

The Andrews Court considered the applicability of this statute to 

revocation proceedings and held 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.” Andrews, 448 S.W.3d at 780.

Here, Swenson does not – and, indeed, cannot – contest that she failed 

repeatedly to abide by the conditions of her probation. Nevertheless, she asserts 

the circuit court erred by revoking her probation rather than issuing the graduated 

sanction she requested because, in her view, her failures did not indicate she 
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constituted a significant risk to prior victims or the community at large, or that she 

could not be managed in the community.

Given the twenty-year sentence of imprisonment, and in light of the 

fallacy of her arguments that the circuit court had predetermined her case by 

having a “zero tolerance policy,” we set out in detail the extent of the exhausting 

opportunities the circuit court gave Swenson to receive treatment and remain on 

probation. Upon a thorough review of the record, it cannot be seriously doubted 

that the circuit court went far beyond complying with only the bare requirements of 

KRS 439.3106(1) and that the keys to remaining on probation were repeatedly 

handed to Swenson. 

In case No. 18-CR-00022, Swenson pled guilty in Hardin Circuit 

Court to committing, on or about December 28, 2017, the offense of receiving 

stolen property under $10,000 (a class D felony). See KRS 514.110. On January 

12, 2018, she was released on bond. Thereafter, in case No. 18-CR-00244, 

Swenson pled guilty to committing nineteen more criminal offenses against several 

more individuals in Hardin County over a sixty-day period between December 

2017 and February 2018. Further, she admitted committing many of those 

additional offenses shortly after being allowed pretrial release from custody on 

January 12, 2018.1

 

1 The specifics of her latter guilty plea are summarized below:
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• On January 13, 2018, in violation of KRS 514.150, Swenson possessed United States 

mail matter of S. Soppeland while knowing or having reason to know it was stolen (a 

class D felony);

• On January 13, 2018, in violation of KRS 514.110(3), Swenson possessed stolen property 

under $500 by knowingly possessing checks of C. Worthington while knowing or having 

reason to believe the checks were stolen (a class A misdemeanor);

• On January 13, 2018, in violation of KRS 514.150, Swenson possessed United States 

mail matter of L. Baker while knowing or having reason to believe it was stolen (a class 

D felony);

• On January 13, 2018, in violation of KRS 514.110(3), Swenson possessed stolen property 

under $500 by possessing a Garmin GPS valued at less than $500, belonging to D. 

Fryman, while knowing or having reason to believe it was stolen (a class A 

misdemeanor);

• On January 13, 2018, in violation of KRS 514.110(3), Swenson possessed an HP laptop 

computer valued at less than $500, belonging to J. Townsend, while knowing or having 

reason to believe it was stolen (a class A misdemeanor);

• On January 13, 2018, in violation of KRS 511.040, Swenson committed third-degree 

burglary by knowingly and unlawfully entering or remaining in a building located at 561 

S. Deepwood Drive, Radcliff, with intent to commit a crime (a class D felony);

• On January 13, 2018, in violation of KRS 514.110(3), Swenson possessed a Garmin GPS 

valued at less than $500, belonging to R. Washburn, while knowing or having reason to 

believe it was stolen (a class A misdemeanor);

• From January 26 until February 2, 2018, in violation of KRS 514.030, Swenson took and 

exercised control over a 2014 Ford F-150 truck valued over $10,000, belonging to Big M 

Chevy, with intent to deprive the owner thereof (a class C felony);

• On January 25, 2018, in violation of KRS 514.030, Swenson took and exercised control 

over an LG cellular telephone valued under $500, belonging to G. Cravens Kos, with 

intent to deprive the owner thereof (a class A misdemeanor);

• On January 13, 2018, in violation of KRS 514.110(3), Swenson knowingly possessed 

credit cards belonging to L. McCrobie, valued under $500, while knowing or having 

reason to believe the cards were stolen (a class A misdemeanor);

• On December 17, 2017, in violation of KRS 514.110, Swenson possessed a 1995 

Chevrolet truck belonging to G. Kersey, valued over $500, while knowing or having 

reason to believe the vehicle was stolen (a class D felony);

• On December 24, 2017, in violation of KRS 514.110, Swenson possessed a 1999 

Chevrolet S-10 truck belonging to L. Clark, valued over $500, while knowing or having 

reason to believe the vehicle was stolen (a class D felony);

• On December 23, 2017, in violation of KRS 514.110, Swenson possessed a 2010

Chevrolet Cobalt belonging to S. Soppeland, valued over $500, while knowing or having 

reason to believe the vehicle was stolen (a class D felony);

• On December 26, 2017, in violation of KRS 514.110, Swenson possessed a 2007 

Chevrolet Cobalt belonging to S. Dailey, valued over $500, while knowing or having 

reason to believe the vehicle was stolen (a class D felony);
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On April 27, 2018, the circuit court sentenced Swenson to five years’

imprisonment in 18-CR-00022 and fifteen years’ imprisonment in 18-CR-00244, 

to run consecutively for a total of twenty years, with parole eligibility upon serving 

twenty percent. But, the circuit court also noted Swenson was addicted to 

methamphetamine and that her addiction had been part of what had motivated her 

to commit her offenses. Accordingly, it referred Swenson to felony drug court 

and, provided Swenson was accepted, agreed to probate her sentence for a period 

of five years or longer to enable her to complete the program. 

However, because of what the circuit court noted was “the extreme 

nature of her addiction,” and also because Swenson had previously been enrolled 

in the misdemeanor drug court program in 2014 and had failed to complete it,2

 

• Between December 20, 2017 and January 13, 2018, in violation of KRS 514.030, 

Swenson took or exercised control of a W-2 tax form belonging to T. Lawson, valued 

under $500, with intent to deprive the owner thereof (a class A misdemeanor);

• On December 20, 2017, in violation of KRS 511.030, Swenson committed second-degree 

burglary by knowingly and unlawfully entering or remaining in the residence of S. 

McMillen and committing a theft (a class C felony);

• Between January 13 and January 31, 2018, in violation of KRS 514.170, Swenson 

committed the offense of trafficking in stolen identities (a class C felony);

• Between January 26, 2018 and February 2, 2018, in violation of KRS 514.150, Swenson 

possessed United States mail including an IRA account statement, credit card application, 

mortgage documents, and other mail matter of H. Owens while knowing or having reason 

to believe it was stolen (a class D felony); and

• Between January 26, 2018 and February 2, 2018, in violation of KRS 514.150, Swenson 

possessed United States mail including SNAP account documents of J. Owens while 

knowing or having reason to believe it was stolen (a class D felony).

2 On February 24, 2014, Swenson was found guilty of misdemeanor public intoxication from 

controlled substances, and she was thereby found to have violated the terms of a probation she 

had already been serving from an earlier misdemeanor drug offense she had committed in 2012. 
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Swenson was placed on a “waiting list.” A precondition of acceptance into the

felony drug court program was to complete a long-term drug treatment program 

and reside for six to nine months at a Recovery Kentucky center beforehand.

3

 

After explaining this precondition to Swenson at the conclusion of the April 27, 

2018 hearing, the circuit court added:

COURT: I don’t want to waste time. And I want to be 

very honest with you, I have grave doubts about whether 

you will ever do this. I think you just want out, and the 

minute you get out, you’re gonna be gone. And if you 

do, you’re going to prison for twenty years. Do you 

understand me?

SWENSON: Yes, sir.

COURT: Now, don’t waste our time. Because there are 

other people who really want to get better, and, you 

know, if you go to an RKC, you’re gonna be there and 

probably with the addiction problem you have it’s 

probably gonna be for the most time, you may be there 

for nine months, and I don’t know for how long. And, 

it’s not like being out. It’s a treatment center. And you 

 

She was sentenced to ninety days’ imprisonment and two years’ probation, but upon her request 

her sentence was suspended. Her probation was extended to enable her to complete the 

misdemeanor drug court program. As discussed below, she ultimately chose to serve her 

suspended sentence and voluntarily terminated her participation in the misdemeanor drug court 

program in May 2016.

3 While this precondition for participation in felony drug court is not set forth in the written 

volumes of record in this matter, it was extensively discussed at hearings held by the circuit court 

on April 27 and August 14, 2018; and at the June 25, 2019 revocation hearing, Swenson 

acknowledged:

COUNSEL: What was the reason why you didn’t get accepted into drug court?

SWENSON: I had already been in treatment court before.

COUNSEL: How long ago was that?

SWENSON: 2014.
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can’t leave. You have to successfully complete it. 

Because if you don’t complete it, not only are you not 

going to get into drug court, you’ll be terminated from 

that, you’re going to prison for twenty years. I just want 

to be fair with you because I don’t want you to waste 

your time. If you’re playing, don’t play. You’re gonna 

lose, alright? Do you understand what I’m telling you?

SWENSON: Yes, sir.

COURT: Now, do you really want treatment?

SWENSON: Yes, sir. 

On May 1, 2018, the circuit court entered an order granting Swenson 

probation and a conditional discharge – conditions that, among other things, 

included: (1) being “subject to graduated sanctions imposed by Probation and 

Parole in accordance with 501 KAR[4] 6:250”; (2) remaining within the area as 

directed by her probation officer; (3) reporting to her probation officer as directed; 

(4) obeying all rules and regulations imposed by Probation and Parole; (5) 

submitting “to periodic drug and/or alcohol testing because [Swenson’s] record 

indicates a drug and/or alcohol problem”; and, in conformity with what was 

discussed at the hearing, (6) successfully completing the felony drug court program 

and residential treatment. To fulfill the precedent condition of six to nine months 

of treatment for acceptance into the felony drug court program, the circuit court 

entered another order on May 14, 2018, directing Swenson to report to the Trilogy

 

4 Kentucky Administrative Regulations.
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Recovery Center for Women and “to complete any and all requirements and follow 

all rules of Trilogy while in residence there. . . . If [Swenson] fails to complete the 

program, [Swenson] shall be placed into custody and returned to the Hardin 

County Detention Center and remain until further orders of the court.”

Swenson then resided at Trilogy until June 8, 2018. On that date, 

Swenson’s probation officer, Deonna Davie, received a discharge report from 

Trilogy stating Swenson had been terminated without completing the program due 

to “receiving several behavior contracts.”

5 Three days later, Swenson reported to 

Officer Davie and was taken into custody.

Following an ensuing motion from the Commonwealth to revoke 

Swenson’s probation, the circuit court held a hearing on August 17, 2018. There, 

Swenson’s then-current probation officer, Darren Payne, testified the report from 

Trilogy had not identified the specifics of Swenson’s behavioral infractions and 

that a Recovery Kentucky center such as Trilogy could assess behavioral contracts 

for a wide range of conduct, including “poor attitude,” “not attending meetings,” 

“threatening behaviors,” or simply not making a bed correctly. He further testified, 

however, that Swenson had received a total of nineteen behavior contracts between 

May 15 and June 8, 2018 and that before Swenson had previously terminated 

 

5 Probation Officer Darren Payne testified during the August 17, 2018 hearing that a “behavior 

contract,” in this context, is essentially a chore or other task that a resident is required to perform 

due to poor behavior.
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herself from misdemeanor drug court in May 2016, she had received four other 

sanctions at two other Recovery Kentucky centers during her participation in that 

program, too. Considering the number of times Swenson had been sanctioned, 

along with her prior non-completion of misdemeanor drug court, Officer Payne

opined Swenson was not amenable to treatment; thus, she could not be effectively 

managed in the community for purposes of probation.

Swenson, for her part, insisted she had been assessed behavior 

contracts for minor offenses, such as not regularly making her bed, forgetting a 

book or a raincoat, bothering another resident about cigarettes, or “cleanliness 

issues.” She claimed she had been unfairly singled out by the individuals who 

issued the behavior contracts. She represented that she had completed all but five 

of her behavior contracts. She asserted she had been suffering from post-traumatic 

stress disorder for the past eight years, as well as bipolar depression, which she 

believed contributed to her behavioral difficulties and prior drug use. She also 

suggested another Recovery Kentucky center, re-NEST, would be a better 

environment for her, and she asked to be placed there instead.

However, Swenson did not contest the validity of Trilogy’s decision 

to terminate her from its program. Discussing that matter further with Swenson 

during the hearing, the circuit court stated:

COURT: So, these behavior contracts you had, five of 

them remained unfulfilled when you were discharged. Is 
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that the right way to say it? You didn’t complete them? 

They remain broken?

SWENSON: Yes, sir.

COURT: And which ones were those again?

SWENSON: I’m not for certain, exactly.

COURT: I mean, you had so many. I mean, it’s hard to 

keep up if you had nineteen contracts. I’ve never heard 

that before. I send people to Trilogy all the time, I send 

people to other places, I have never heard that many 

behavioral contracts in that many days. That’s a record. 

And that’s about you. It’s not about the staff, it’s not 

about the other people there. It’s about you. So that’s 

the problem. How in the world can I send you back to 

Trilogy when that’s the behavior I can expect?

The circuit court also questioned Swenson regarding whether she had 

ever voluntarily sought treatment for the psychological issues that allegedly

contributed to her behavior problems:

COURT: In the last eight years, how many times did you 

seek treatment in the form of therapy to deal with your 

PTSD? Not something court-ordered, or that probation 

told you to do. I want to know what you did in the last 

eight years to better your condition.

SWENSON: I seeked [sic] treatment one time through 

Dr. Amedi Radcliff.

COURT: Okay. What was that?

SWENSON: Um, they prescribed me a Xanax, a 

smallish dose. Then I was not able to take it as 

prescribed, so I never went back.
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COURT: What do you mean you were “not able to take 

it as prescribed”?

SWENSON: As an addict, I overdid it.

COURT: Of course. Right? So, you see what I’m 

getting at here. Was there any therapeutic approach, any 

time you would meet with a counselor to talk about it? 

Because believe it or not, there is no pill that cures 

PTSD. Some of it is therapy to deal with the trauma. 

Have you ever engaged in therapy about your PTSD?

SWENSON: Recently in December, I was seeking to 

arrange an advocate, who eventually arranged to come 

down to the jail and speak to me.

The circuit court also questioned Swenson regarding her decision to 

voluntarily terminate herself from the misdemeanor drug court program in May 

2016:

COURT: When you were in drug court the first time, if I 

understood you correctly, you had sanction after sanction 

and at some point, they wanted you to do long-term 

treatment?

SWENSON: Yes, sir.

COURT: And where was that?

SWENSON: They wanted me to go to Freedom House.

COURT: Okay. And you didn’t want to?

SWENSON: No, sir.

COURT: Why not?
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SWENSON: I was seven months pregnant, my time on 

the shelf was less, and I didn’t want to have to drag two 

kids to drug test at six o’clock in the morning.

COURT: Sounds like excuses to me.

SWENSON: It was.

COURT: It is. Did you think you were better off, seven 

months pregnant, not being engaged in treatment in 

Freedom House?

SWENSON: No, sir.

COURT: So, what happened then?

SWENSON: I served out my time.

COURT: Was the baby born in prison?

SWENSON: No, I was released in time.

COURT: Because you had done the math, and you’d 

said, “Okay, I can get out, have the baby, and go on with 

my life.” How long did that last?

SWENSON: About three months. I relapsed.

COURT: What did you relapse on?

SWENSON: Methamphetamines.

After reviewing the evidence, the circuit court decided against 

revoking Swenson’s probation or requiring her to serve an alternate sentence; 

instead, it granted her request to be placed at re-NEST. The court’s findings in this 
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regard, pronounced orally from the bench at the conclusion of the hearing, were as 

follows: 

So, my thought is this. I have to go through a three-part 

analysis first. Do the violations we have seen, do they 

indicate a risk of, a risk to prior victims of this 

defendant? Well yes, they do, because they show a 

present either unwillingness or inability to engage in 

treatment effectively. 

Or do they create a danger or risk to the community as a 

whole, which includes the defendant herself as part of the 

community? No doubt that’s true. No one ever stopped 

this defendant from seeking out therapy. No one ever 

stopped her from doing that. And it seems to be like, 

“Well, when I’m forced to do something, I’ll do it and 

I’ll do it badly.” I’ve never heard of nineteen contracts in 

seventeen days, it’s just incredible. 

But ultimately the final factor I’m gonna have to deal 

with is, I must make a finding that the defendant cannot 

be managed appropriately in the community with 

probation alternatives. I have no doubt if I make the 

finding today that I believe this defendant cannot be 

managed appropriately in the community, an appellate 

court would uphold that decision on this record. Without 

doubt. Because I’ve had these situations before where 

this person will not engage, will not do it. The fact that 

there’s something out there you can send the person to is 

not the deciding factor, it’s whether the defendant can be 

managed appropriately in the community, and some of 

that depends on their own issues of not being a 

procrastinator and not making excuses, but actively

engaging in the treatment that’s available. 

So, that’s where I’m on the border. I mean, the 

Commonwealth’s on the border about just revoking this 

probation, which would certainly be justified. Or doing 

an alternate sentence, which would also be justified. I’m 
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on the border of just trying to believe that another 

opportunity at a treatment placement should be provided 

to this defendant, because that means someone else who 

may be much more motivated and much more willing to 

engage in treatment will not get that bed. And that’s 

what, those are the things that make me think when I 

make these decisions, I’ve got just so few places that we 

can send people to for treatment, and if I send somebody 

when it is not gonna be anything but, “Let me out of jail, 

get me out of jail, whatever I have to say or do to get me 

out of jail,” and then as soon as they’re there they go 

right back to the same things they did, they get 

terminated, and then I’ve wasted that limited spot. 

So, when I look at the fact that this is a twenty-year 

sentence we’re dealing with, one of the reasons I’ve 

decided I’m not going to do the alternate sentence 

approach is because I’m concerned about the defendant 

doing the math. If I do an alternate sentence and she then 

gets out, goes back on probation, then it’s more tempting 

to just do what she’s done before: “Well, I can do this 

much time and get out and go back to doing whatever I 

want, or can decide differently.” 

So, I would like to be hopeful, but I kind of share [the 

Commonwealth’s] hesitation, wondering if this defendant 

will truly ever engage in treatment. But ultimately, since 

there is an available spot at re-NEST, I’m going to order 

that she go to re-NEST. However, I’m going to direct 

that probation and parole must receive weekly reports 

while she is at re-NEST. Upon any violation of their 

rules, she will be detained by the probation officer, there 

will be no reason to get a warrant. 

In other words, I will direct the probation officer, if reNEST calls and says, “We’ve got a problem, we’ve got 

five behavioral contracts,” she will be detained, we’ll 

come back in here, and I think from everything that’s 

been said today we know what will happen then. Of 

course, we don’t know until something happens, but I 
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don’t know what the next option will be. So, as I said, I 

will order her to be transported from the jail to re-NEST 

when they confirm there is a spot available for her, and I 

want that to be followed closely by probation and parole 

because I’m, there’s a part of me that’s like, I think she’ll 

go and run as soon as she can. Okay? So, hopefully 

she’ll prove me wrong. Hopefully she’ll prove [the 

Commonwealth] wrong. I don’t really enjoy the thought 

of sending her away to prison for twenty years, but I’ll do 

it if I have to.

In short, after reviewing Swenson’s criminal history and the course of 

her various probations, the circuit court remained concerned that Swenson would 

continue the pattern of behavior that had led her to commit multiple offenses and 

that Swenson’s behavior would prevent her from receiving treatment absent 

incarceration: She would only undergo treatment if forced to do so; she would 

only put forth minimal effort during treatment; given the choice – and to her 

detriment – she would choose freedom over drug treatment; and she would remain 

unwilling to accept responsibility. 

Nevertheless, in its post-hearing order of August 20, 2018, the circuit 

court decided against revoking Swenson’s probation and instead approved her 

transfer to re-NEST, stating in relevant part:

FINDINGS OF FACT

The defendant failed to abide by the terms and conditions 

of probation by committing the following violations: 

another failure to complete treatment at Trilogy – more 

than a dozen behavior contracts during short residence 

resulted in termination. 
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CONCLUSIONS OF LAW

The Defendant was afforded the opportunity for a 

hearing pursuant to KRS 533.050. In determining 

whether to revoke the Defendant’s probation or to assess 

a penalty or conditions other than revocation, the Court 

has considered the requirements of KRS 439.3106 and 

finds: sanctions other than revocation and incarceration 

as appropriate to the severity of the violation behavior, 

the risk of future criminal behavior by the offender, and 

the need for, and availability of, interventions which may 

assist the offender to remain compliant and crime-free in 

the community.

ORDER

WHEREFORE IT IS ORDERED that the sentence of 

probationary supervision is hereby: Not revoked, and in 

lieu of revocation, the Court hereby imposes the 

following Alternate Sentence and/or modification of 

conditions: given the lengthy sentence the Deft. will 

serve if she does not engage in treatment, court decided 

to allow door-to-door placement at re-NEST.

However, on November 16, 2018, Swenson was discharged from the 

re-NEST program. Consequently, Officer Payne submitted a November 20, 2018 

violation of supervision report, once again recommending the revocation of 

Swenson’s probation. A bench warrant was issued the same day for her arrest. 

But, the Commonwealth did not move to revoke Swenson’s probation; no 

revocation hearing was held; and the circuit court later recalled the bench warrant 

in a December 13, 2018 order “due to the Defendant being compliant with 

Probation and Parole.” The circuit court’s order further stated, “The Defendant 
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enrolled in Serenity Place after having to leave the Re-Nest [sic] Treatment facility 

due to having medical issues and has been checking in regularly with her Probation 

Officer. If the Defendant fails to comply with treatment she shall be placed into 

custody and taken to Hardin County Detention Center where she will remain until 

further orders of the court.” Thus, “having medical issues,” and Swenson’s 

relocation from re-NEST to “Serenity Place”6 – apparently a third treatment 

facility that probation and parole allowed her to attend – were enough for the 

circuit court to justify withdrawing Swenson’s arrest warrant. 

However, this point requires further discussion. During the 

subsequent probation revocation proceedings of June 25, 2019, the circuit court 

would later cite Swenson’s failure to remain a resident at re-NEST as an example 

of Swenson “doing the math,” demonstrating she was more interested in freedom 

than treatment – just as she did in May 2016 by voluntarily terminating her 

participation in misdemeanor drug court. To explain, the only statement from reNEST regarding why Swenson had been discharged from its program is set forth in 

a November 20, 2018 letter its program coordinator submitted to Officer Payne. In 

relevant part, it stated:

Ms. Swenson was exhibiting continuous behaviors not 

conducive to recovery, such as dishonesty and 

 

6 During the various hearings in this matter, this facility was intermittently referred to by the 

circuit court and parties as “Serenity Place,” “Serenity Sisters,” and “Serenity Girls.”
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manipulation.[7] We suggested that she restart the 

program due to these behaviors. She was unwilling to 

comply, and left the program Against Medical Advice. 

During her subsequent June 25, 2019 revocation hearing, Swenson 

was, for the first time, confronted with this statement and required to testify 

regarding why she had chosen to leave re-NEST. There, she denied engaging in 

any kind of dishonest or manipulative behavior, and she insisted re-NEST had 

advised her in November 2018 that it would be necessary to restart its program for 

reasons associated with a bladder surgery she needed to undergo around that 

time.

8˒9

 The point the circuit court would eventually make in citing this detail, 

however, is that re-NEST had advised Swenson it would be necessary for her to 

restart its rehabilitation program and that rather than accepting re-NEST’s advice, 

 

7 An itemized list of Swenson’s behavioral infractions was not provided by re-NEST, but Officer 

Payne stated in his report that they included Swenson’s refusal to surrender her cellular 

telephone while residing at the facility. 

8

In this respect, at the June 25, 2019 hearing, Swenson testified:

When I left re-NEST, I went to Serenity Girls, I got myself, it was a Friday to a 

Monday, I let Darren Payne know what was going on. I was gonna need surgery 

for IC bladder issues at the, re-NEST, that’s why they told me my original restart 

was gonna have to happen, because if I had surgery and had any kind of 

medication prescribed to me, I would need to have a restart anyhow. So, I got 

myself into Serenity Girls with Billy-Jo, because she said she would allow me to 

take medication and all I had to do is complete the program. I completed the 

program February 3rd.

9

In her appellate brief, Swenson now represents she departed re-NEST because the facility was 

unable “to accommodate her pregnancy.” If Swenson was pregnant during this time, or if she 

intended to mean that her “IC bladder issues” were occasioned by a pregnancy, it is not reflected 

in the record.
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Swenson sought to reside at Serenity Place – a facility that would not require her to 

restart rehabilitation.

In any event, the record contains no documentation from Serenity 

Place, but Swenson testified that in February 2019, she was permitted to leave the 

facility and continue her treatment (i.e., the prerequisite for her enrollment in the 

felony drug court program) while residing in an apartment with a coworker for a 

month, and then in an apartment of her own until June 2019. Officer Payne also 

verified Swenson later completed her prerequisite treatment in April 2019; had 

thereafter remained on the waiting list for enrollment into felony drug court; and 

that between February and June 2019, he had also permitted Swenson to 

occasionally drive to Indiana to visit with one of her minor children.

Keeping that in mind, on May 31, 2019, Officer Payne submitted 

another violation of supervision report and an accompanying affidavit, noting 

Swenson had violated her probation in two more respects. First, if Swenson 

received any new charges, the terms of her probation required her to report it to her 

probation officer within seventy-two hours. And, Officer Payne noted, he had 

discovered on his own that Swenson had been arrested in Indiana on February 23, 

2019, on charges of public intoxication and reckless driving. In other words, 

Swenson had not reported those charges to him at all. Officer Payne stated that as 

a graduated sanction for the violation he had required Swenson “to complete 30 
-21-

Community Service Hours within the next 12 months.” Payne added that 

Swenson’s Indiana charges remained unresolved and that a pre-trial conference 

had been scheduled in Indiana for June 5, 2019.

As to the second violation, Officer Payne recommended revoking 

Swenson’s probation for the following reason:

Kathryn Swenson reported to the office of Probation and 

Parole on May 30, 2019. At that time, Ms. Swenson was 

asked to submit to a random drug screen. Ms. Swenson 

was unable to produce a sample for testing at that time. 

Ms. Swenson was advised to return to the office on May 

31, 2019 at 8 AM to produce a sample for the drug 

screen. Ms. Swenson failed to show for the appointment 

and has not made contact with this Officer.

. . .

Kathryn Swenson has been afforded every opportunity to 

comply with Probation and Parole. Ms. Swenson has 

failed to comply numerous times with directives from the 

Court and Probation and Parole. Due to Ms. Swenson’s 

inability to comply with directives on numerous 

occasions, the use of Graduated Sanctions are no longer 

appropriate at this time. 

On June 3, 2019, the circuit court issued a warrant for Swenson’s 

arrest for failing to report to her probation officer for drug testing. She was 

arrested on June 7, 2019. After being taken into custody, Swenson was provided a 

drug screen at the Hardin County Detention Center and tested positive for 

methamphetamine. Subsequently, the Commonwealth moved to revoke her 

probation.
-22-

Swenson was later brought before the circuit court on June 11, 2019, 

for a preliminary hearing to schedule revocation proceedings, and to provide 

Swenson information regarding the nature of those proceedings. Whereupon, after 

being Mirandized,10 Swenson represented that she had never used 

methamphetamine during her probation and that the positive result to the contrary 

must have occurred because she had been taking Zantac “which [her] experience 

had shown” could cause a false positive. She also claimed the detention center 

personnel responsible for collecting her drug screen sample had tampered with it 

by mixing it with another inmate’s sample:

SWENSON: During this drug test that was done at the 

jail, I watched, I took another test with a woman and I 

watched the nurse, um, combined our tests together when 

she sent it off to the lab. Because Ms. Clover was the 

one that watched–

COURT: We’ll need to subpoena that witness. Is she 

willing to be charged with tampering with evidence?

SWENSON: I have no idea. But I produced a full cup of 

urine, and the other woman did not.

COURT: Why didn’t you tell me that the first time 

instead of the Zantac story?

SWENSON: Well, because that is, I was, I’m on Zantac 

and I mean—

COURT: You’re not helping yourself here.

 

10 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
-23-

On June 25, 2019, the circuit court held the hearing with respect to the 

Commonwealth’s motion to revoke Swenson’s probation. There, Officer Payne 

testified consistently with his report. And Swenson, for her part, admitted to 

relapsing with methamphetamine on “the week of May 30th.” 

However, when pressed by the circuit court on this point, particularly 

in relation to her inability to produce a specimen for drug testing on May 30, 2019, 

and her failure to report for drug testing on May 31, 2019, Swenson then specified 

she had only used methamphetamine on one occasion and on the date of June 3, 

2019.

Swenson also testified that June 3, 2019, had been the first occasion 

she had used methamphetamine since December 2017 – testimony the circuit court 

found dubious. During the hearing, it reminded Swenson of her earlier admissions 

that her use of methamphetamine had motivated her criminal conduct and that in 

her guilty plea she had admitted committing several of her felonies and 

misdemeanors in January and February 2018.

Swenson testified that after she had failed to report for drug testing on 

May 31, 2019, she had left Officer Payne two voicemails over the next few days11

 

11 Officer Payne testified the only contact he received from Swenson between May 30, 2019, and 

the date of her arrest consisted of one voicemail message. He recalled receiving it the day before 

she was arrested.
-24-

and that because he had not returned her phone calls, she had assumed her failure 

to report was not any cause for concern. She admitted, however, that her failure to 

report was a violation of her probation.

With respect to her recent charges in Indiana, Swenson insisted that 

while her case remained ongoing, she was innocent and the case against her would 

inevitably be dismissed in her favor.

12

 As to why she never informed her probation 

officer of her arrest, she testified:

SWENSON: I waited for him to call me.

COURT: Why?

SWENSON: Because I was under the miscommunication 

that I was supposed to let him know when I pled guilty.

COURT: No. That’s not in the papers you signed. 

Okay? Not a miscommunication from him. That’s in the 

papers that I know you signed. You tell them. They 

don’t do things for you, you tell them. Because they 

can’t keep up with people being arrested in another state. 

You’re supposed to tell them within 72 hours because if 

something like that is going on, it may indicate that there 

needs to be a change in the probation, get somebody to 

treatment. There’s all kinds of things that need to 

happen. So that was your mistake, right? 

SWENSON: Yes, sir.

 

12 The record only indicates Swenson’s Indiana charges are misdemeanor public intoxication and 

reckless driving, and that the case against her remains ongoing.
-25-

Over the course of the hearing, the circuit court exhaustively reviewed 

the nature of Swenson’s criminal offenses, as well as the details of what had 

transpired during her probation, including what is set forth above. Upon the 

conclusion of the hearing, Swenson’s counsel argued:

Well, your honor, it’s clear that she violated the terms of 

her probation, but I would ask the court to give her a 

sanction. She did go for a period of time where she had 

no positive drug screens. There’s only been essentially 

one here, recently, as far as a positive drug screen. We 

know that she’s got the ability to go for long stretches of 

time without using drugs. Um, I would suggest to the 

court that the court just give her a sanction of up to 

twelve months, if the court would be inclined to suspend

part of that sanction on the condition that she complete a 

long-term rehab I would ask for that as well.

Conversely, the Commonwealth advocated revoking Swenson’s 

probation: 

Judge, this is not the first time we’ve been here. In fact,

the last time we were here, she was given, I have words 

to the effect of strict compliance, she was put on weekly 

progress reports. That wasn’t, that wasn’t even a year 

ago. She’s someone who, I think, is trying to do 

probation on her own terms and I don’t think has been 

entirely truthful. I’ve heard her use the phrase, “I’m 

gonna be honest with you,” about ten times. It concerns 

me when I hear someone use those words because, 

obviously, there may be a lot of dishonesty when she has 

to clarify when she’s being honest. But, I have some 

concern that she would complete any type of treatment 

offered to her. She’s had multiple types of treatment 

offered. Drug court did not work. PSAP, she’s not 

eligible for. I don’t think there’s anything that’s going to 

keep her from being a danger to herself or the community 
-26-

other than incarceration. She’s in violation of her 

probation, I don’t think she can be managed, I don’t think 

that she’s going to adhere to anything, she’s shown no 

willingness to adhere to anything, and just continuously 

making excuse after excuse. So, I think that her 

probation should be deemed violated and she should 

serve her term. 

On July 8, 2019, the circuit court entered its order revoking 

Swenson’s probation. The findings and conclusions set forth in its order were as 

follows:

FINDINGS OF FACT

The defendant failed to abide by the terms and conditions 

of probation by committing the following violations:

1. failure to complete treatment, continued drug use.

2. new charges out of Indiana.

CONCLUSIONS OF LAW

The Defendant was afforded the opportunity for a 

hearing pursuant to KRS 533.050. In determining 

whether to revoke the Defendant’s probation or to assess 

a penalty or conditions other than revocation, the Court 

has considered the requirements of KRS 439.3106 and 

finds: Such violation(s) constitute a significant risk to 

prior victims of the Defendant or the community at large 

(including the Defendant) and cannot be appropriately 

managed in the community. As stated in detail on the 

record, the Courts have tried multiple treatment facilities 

and drug court. The Defendant will not engage in any 

long-term treatment plan. She will continue with 

manipulation and dishonesty. Her drug use will lead to 

more thefts.

(Emphasis added.)
-27-

As emphasized, however, the circuit court’s order incorporated more 

detailed oral findings and conclusions given from the bench during the conclusion 

of the June 25, 2019 hearing. Those findings and conclusions were as follows:

COURT: I guess ultimately here’s what I have to decide. 

There’s no question she violated her probation in 

multiple ways. I mean, I could list the different ways. 

But here’s the rules, here’s the law about this. I have to 

decide, is her conduct in violation of her probation, does 

that represent a danger to prior victims or a danger to the 

community including herself? Well, yeah, it actually 

does. If somebody’s been through that much treatment, I 

mean we’ve been through everything, treatment, drug 

court, re-NEST, all of these things, Trilogy, and a lot of it 

is self-destructive behavior on her part. Then, things 

blow up again, right? So, my finding would have to be, 

yes it is. And here’s why. Eventually, if you did relapse 

on meth, and you start going down that road again, it’s

just a matter of time before you’re gonna steal something 

else—

SWENSON: That’s why I asked for help.

COURT: Yeah. And I gave you help.

 

SWENSON: Yes, sir, I mean—

COURT: More than once. But here’s the problem. 

Here’s the thing. Yes, I think you would be a danger to 

yourself. If you were still out on probation, you would 

either be a danger to yourself or other people in the 

community or you’re going to commit, eventually go 

back to committing crimes, probably related to theft to 

feed a drug addiction again. See, the second part is the 

part I’ve been trying to find an answer to because that is, 

“Judge, do you believe this person can be appropriately 

managed in the community?” I have to find that they 
-28-

cannot be appropriately managed in the community in 

order to revoke probation. 

That’s why I’ve spent all this time, I didn’t want to waste 

anybody’s time, and I know it got frustrating to listen to 

me asking and going through all of this. People get tired 

of it, but I’m the one who has to decide this. And I want 

to make sure I leave no stone unturned and say, “What on 

Earth can we do now?” 

And the answer is nothing. I’m sorry to say, but nothing. 

We’ve gone through all the different things that we can 

try. And what I’m being asked to do, this is what’s really 

telling me something, is to say, “Well, I’ve made an IOP 

appointment,” or “I’ve done this, and I want to do this.” 

It’s not enough. It’s too little, too late, and it isn’t going 

to solve the problem. It just isn’t. So, it’s really difficult 

for me to sit back and say, you know, you had this 

chance to avoid a really powerful, long sentence, and 

more than one chance was given, and you just keep 

blowing it. 

And I have to agree with part of what I heard here, you 

know, you’re good at finding excuses. You’re good at 

saying, “Well this, but this and this.” And “This person 

did that.” And “Listen, that’s really not what happened.” 

If you aren’t willing to take responsibility more than you 

are, no treatment I could come up with would work. 

So, at the end of the day, you know, I thought about what 

defense counsel just said. Look, I could do this because a 

twenty-year sentence is tough. But once at 20%, you’ve 

got jail credit in, you’re gonna be able to see the parole 

board in the not too distant future if I revoke your 

probation. 

But I could, under the statute, revoke her probation and 

make her serve twelve months. What for? I can’t send 

her to PSAP because she’s blown that up. I can’t send 

her to PSAP to get treatment while she’s in for that 12 
-29-

months, that she can’t walk away from. She can’t, you 

know, she has behavioral problems, they’ll throw her out 

of that, too, but at least she won’t just walk away and go 

do something else, drugs or anything else. 

And I throw my hands up, in part, because I’m so very 

frustrated with it. I wish there was something more we 

could do, but I think she’s been given a lot of chances 

and she’s just blown them all. And I am not going to 

waste any more resources. There are other people who 

can go with the types of treatments that I can do that 

might actually want to do it and are not just playing me. 

My decision, then, based on what I’ve said, is that 

probation is revoked.

In short, after once again reviewing Swenson’s criminal history and 

the course of her various probations, the circuit court revoked Swenson’s probation 

after concluding the pattern of behavior that had led Swenson to commit a 

multitude of criminal offenses had not changed and that Swenson’s behavior had 

indeed prevented her from receiving treatment absent incarceration: She had 

undergone treatment only when forced to do so; she had only put forth minimal 

effort during treatment; given the choice, and to her detriment, she had chosen 

freedom over continued drug treatment; and she had remained unwilling to accept 

responsibility.

Swenson now appeals. First, she asserts the circuit court 

misunderstood the record when it indicated in its oral findings that she had “been 

through everything, treatment, drug court, re-NEST, all of these things, Trilogy.” 

Specifically, Swenson notes that, ultimately, she was never enrolled in the felony 
-30-

drug court program; she argues her “departure from reNEST [sic] for Serenity 

Place was legitimately due to the latter facility’s ability to accommodate her 

pregnancy”; and she notes that the circuit court had already considered the fact that 

she had been assessed nineteen behavior contracts against her at Trilogy, and had 

previously rejected it as a basis for revoking her probation. Accordingly, she 

argues, those details cannot support the circuit court’s determination, in its July 8, 

2019 order, that she violated her probation.

To be clear, however, the circuit court never insinuated Swenson had 

ever enrolled in the felony drug court program; it was referencing her selftermination from the misdemeanor drug court program. And, nothing of record 

indicated re-NEST was “unable to accommodate” any medical issues Swenson 

may have had; by Swenson’s own admission, she left that facility because she did 

not wish to restart their program and desired a quicker treatment option.

More to the point, the circuit court did not cite those events, or the 

nineteen behavior contracts assessed against Swenson during her stay at Trilogy, to 

support the notion that she violated her probation for purposes of its July 8, 2019 

order. It did so because, among other things, KRS 439.3106 requires trial courts to 

determine whether a probationer can be “managed in the community before 

probation may be revoked.” Andrews, 448 S.W.3d at 780. As discussed at length 

in this opinion, the circuit court considered those events, along with the many other
-31-

events outlined above, and inferred she could not. For the sake of brevity, we will 

not repeat the breadth of the circuit court’s analysis in that respect; suffice it to say, 

its inferences were reasonable, and its finding was not an abuse of discretion.

Swenson also asserts, once again, that her reckless driving and public 

intoxication charges in Indiana will be dismissed because she is innocent. But, this 

point is irrelevant for at least two reasons: (1) nothing of record indicates those 

charges have been dismissed; and in any event, (2) in citing “new charges out of 

Indiana” as a violation of Swenson’s probation, the circuit court was not 

referencing Swenson’s guilt, but her failure to report those charges to her 

probation officer.

Swenson also likens herself to the appellant in Helms v. 

Commonwealth, 475 S.W.3d 637 (Ky. App. 2015). There, she notes, appellant

Helms’ probation was revoked after he tested positive for methamphetamine on 

one occasion, and the revocation was ultimately deemed an abuse of discretion

because it had resulted from a court-enforced “zero-tolerance” provision. Swenson 

points out that she, too, only tested positive for methamphetamine on one occasion 

before her probation was revoked and that during her April 27, 2018 sentencing 

hearing the circuit court told her, “If you don’t complete [drug treatment], not only 

are you not going to get into drug court, you’ll be terminated from that, you’re 
-32-

going to prison for twenty years,” which she believes is akin to a “zero-tolerance” 

provision.

However, “one positive test for methamphetamine” is the only 

similarly between Swenson and Helms. For example, Helms was on pretrial 

felony diversion for a first offense and deemed a “low-risk” offender prior to his 

revocation. Id. at 639. Swenson, on the other hand, was on probation after having 

already been sentenced to twenty years’ imprisonment for twenty felony and 

misdemeanor offenses – none of which was her first offense – and was deemed 

“high-risk.”13 

Prior to revocation, Helms’ probation officer never considered giving 

him any type of graduated sanction because the trial court had inserted a “zerotolerance” provision in its pretrial diversion order. Id. Here, no “zero-tolerance” 

provision was ever added to any written order of record; each of Officer Payne’s 

reports contemplated assessing graduated sanctions; and Officer Payne did assess 

Swenson a graduated sanction for her failure to report her Indiana charges. Indeed, 

the circuit court did not revoke Swenson’s probation on August 20, 2018, despite

its determination that Swenson’s conduct at Trilogy had violated her probation. 

And in both its August 20, 2018, and July 8, 2019 orders, the circuit court carefully 

 

13 The circuit court set forth its determination that Swenson was a “high risk” offender in an 

April 2, 2018 order.
-33-

explained why it did or did not revoke her probation – not due to any immutable 

policy, but due to what it perceived was Swenson’s ability to be managed in the 

community.

Helms was also characterized by his probation officer as 

“cooperative”; he did not contest his violations; he admitted responsibility for his 

violations; nothing of record demonstrated he was unwilling to be effectively 

managed during probation; and he testified to his willingness to “begin his entire 

period of pretrial diversion anew.” Id. at 640.

By contrast, the circuit court here reasonably inferred from Swenson’s 

testimony, Officer Payne’s testimony, and the various reports of record that 

Swenson was uncooperative. As discussed above, Swenson downplayed or 

contested her violations, and on at least one occasion – i.e., June 11, 2019, when 

she denied using methamphetamine at all – instead blamed her positive result on 

“Zantac” or the malfeasance of jail personnel. Furthermore, on at least two 

occasions (namely, when she voluntarily terminated her participation in 

misdemeanor drug court in May 2016, and when she chose to leave re-NEST for 

Serenity Place), Swenson demonstrated she had more interest in freedom than a 

longer term of treatment. And following both of those occasions, she relapsed 

within three months.
-34-

In other words, Helms does not reflect the circuit court committed any 

error in this matter.

Lastly, Swenson contends the circuit court’s factfinding was 

inadequate. Again, we disagree. From its written and oral findings, the circuit 

court specified Swenson had violated her probation by: (1) failing to report her 

charges in Indiana; (2) failing to report to her probation officer for mandatory drug 

testing; and (3) testing positive for methamphetamine – violations Swenson does 

not contest. It carefully considered the additional necessary factors required by 

KRS 439.3106. And considering the record, the circuit court’s findings were 

clearly not an abuse of its discretion.

Accordingly, we AFFIRM.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Roy Alyette Durham II

Assistant Public Advocate

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Kristin L. Conder

Assistant Attorney General

Frankfort, Kentucky