RENDERED: JULY 29, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-0963-MR

JAMES JUSTIN BREWER APPELLANT

APPEAL FROM BOYD CIRCUIT COURT

v. HONORABLE JOHN F. VINCENT, JUDGE

ACTION NO. 18-CR-00606

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

VACATING AND REMANDING

**   **  **

BEFORE: ACREE, CETRULO, AND L. THOMPSON, JUDGES.

CETRULO, JUDGE: James Justin Brewer (“Brewer”) appeals from the Boyd 

Circuit Court’s revocation of diversion and imposition of a five-year sentence for 

flagrant non-support. He argues that the trial court committed palpable error when 

it revoked his diversion after he failed to abide by the terms of his diversion. After 

careful consideration, we vacate and remand.
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I. BACKGROUND

In June 2019, Brewer pled guilty to flagrant non-support and was 

sentenced to five years’ imprisonment, diverted for five years, on the condition that 

he comply with the diversion agreement. This agreement placed him on 

unsupervised probation and required him, in pertinent part, to pay his child support 

arrearage of $2,304 through monthly payments of $38.40 for 60 months.

In August 2019, the Commonwealth made a motion to remove Brewer 

from diversion for failure to make payments. At the hearing one month later, 

Brewer paid $120, and the Commonwealth withdrew its motion, agreeing to 

monitor Brewer according to the terms of his diversion.

In November 2019, the Commonwealth again made a motion to 

remove Brewer from diversion for failure to make payments. Brewer failed to 

appear for the hearing, and a bench warrant was issued. Brewer was arrested in 

January 2020, and at a February 2020 hearing, Brewer was held in contempt. The 

trial court sentenced him to 35 days to serve, to pay $250 that day, another $250 in 

two weeks, and to make future payments on the arrears.

In June 2021, the Commonwealth, for the third time, made a motion 

to remove Brewer from diversion for failure to make payments. The trial court 

held a termination hearing in August 2021 (“August 2021 Hearing”). At that 

August 2021 Hearing, the Commonwealth called one witness, Lindsay Blair, a 
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caseworker with the Boyd County Child Support Office (“CW Blair”). CW Blair 

testified that Brewer’s current arrearage on his child support obligation was $8,993

and that his last payment was a tax intercept in July 2020. She also testified that 

she did not know of any reason Brewer could not pay his child support obligation, 

nor did she have knowledge of other active child support obligations for Brewer.

At the August 2021 Hearing, Brewer testified on his own behalf. 

Brewer’s defense counsel asked him if he had another case involving child support, 

to which Brewer answered “yes.” Counsel then asked, “Do you recall the payment 

history in that matter?” As Brewer was answering, the Commonwealth objected, 

arguing relevance. The judge sustained, saying, “that has no relevance to this 

case.” The August 2021 Hearing continued with Brewer testifying that he had 

been incarcerated since February 2021. No further testimony or evidence was 

presented on Brewer’s behalf.

The following week, on August 11, 2021, the trial court entered a 

written order removing Brewer from diversion and imposing the five-year 

sentence. In its order, the trial court stated, in part:

It is clear that Mr. Brewer cannot comply with the terms 

of his diversion agreement. He has been given ampl[e] 

opportunity through progressive discipline to attempt to 

comply. He refuses. There is no effort on the part of Mr. 

Brewer as no payments even of some small amount were

made since July of last year. As a result, Mr. Brewer is 

unable to be managed in the community on his diversion. 

The difficulty in bringing him before the Court is 
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evidenced as evidenced [sic] in the record also reflects a 

danger to the community because he fails to comply with 

known court orders. As a result, the diversion of Mr. 

Brewer is revoked, and he is sentenced to five years 

active time. He is remanded to the Department of 

Corrections for imposition of that sentence.

This appeal followed.

II. STANDARD OF REVIEW

On appeal, Brewer argues (1) the trial court failed to make the 

requisite findings of fact under Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 

76 L. Ed. 2d 221 (1983), and Commonwealth v. Marshall, 345 S.W.3d 822 (Ky. 

2011); and (2) there was not sufficient evidence in the record to make the required 

findings under KRS1 439.3106(1). Brewer states that both issues were not properly 

preserved, and therefore, asks this Court to review for palpable error pursuant to 

RCr2 10.26.

A palpable error which affects the substantial rights of a 

party may be considered by the court on motion for a 

new trial or by an appellate court on appeal, even though 

insufficiently raised or preserved for review, and 

appropriate relief may be granted upon a determination 

that manifest injustice has resulted from the error.

RCr 10.26.

1 Kentucky Revised Statute.

2 Kentucky Rule of Criminal Procedure.
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We consider an error palpable “only if it is clear or plain under current 

law[.]” Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009). “[W]hat a

palpable error analysis ‘boils down to’ is whether the reviewing court believes

there is a ‘substantial possibility’ that the result in the case would have been

different without the error.” Roberts v. Commonwealth, 410 S.W.3d 606, 610 (Ky. 

2013) (citing Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006)).

III. ANALYSIS

A. Findings under Bearden and Marshall

First, Brewer argues the trial court failed to make the requisite 

findings of fact under Bearden and Marshall. Specifically, he argues the court 

failed to determine the reasons for his failure to pay.

In Bearden, the U.S. Supreme Court determined that while poverty 

does not immunize a person from punishment, neither can poverty be the sole 

justification for imprisonment. Bearden, 461 U.S. 660, 103 S. Ct. 2064. “[I]f the 

State determines a fine or restitution to be the appropriate and adequate penalty for 

the crime, it may not thereafter imprison a person solely because he lacked the 

resources to pay it.” Id. at 667-68, 103 S. Ct. at 2070. The Bearden Court held 

that before revoking probation, a sentencing court must determine reasons for the 

failure to pay. Id. at 672, 103 S. Ct. at 2073. The Bearden Court distinguished
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between a person who refused to pay and one who cannot, despite bona fide 

efforts, pay restitution3 or fines.

[I]n revocation proceedings for failure to pay a fine or 

restitution, a sentencing court must inquire into the 

reasons for the failure to pay. If the probationer willfully 

refused to pay or failed to make sufficient bona fide 

efforts legally to acquire the resources to pay, the court 

may revoke probation and sentence the defendant to 

imprisonment within the authorized range of its 

sentencing authority. If the probationer could not pay 

despite sufficient bona fide efforts to acquire the 

resources to do so, the court must consider alternate 

measures of punishment other than imprisonment. Only 

if alternate measures are not adequate to meet the State’s 

interests in punishment and deterrence may the court 

imprison a probationer who has made sufficient bona fide 

efforts to pay.

Id. at 672, 103 S. Ct. at 2073.

In 2011, the Kentucky Supreme Court elucidated upon Bearden. In 

Marshall, the Supreme Court consolidated two flagrant non-support cases for 

discretionary review. Randy Marshall (“Marshall”) and Mark Johnson

(“Johnson”) each entered guilty pleas to charges of flagrant non-support in Graves 

Circuit Court. Marshall, 345 S.W.3d at 823. Both Marshall and Johnson accepted 

plea agreements that conditionally discharged their sentences, but later the 

Commonwealth moved to revoke their conditional discharge for failure to comply 

3 This Court determined that money owed for past due child support constitutes “restitution” 

within the meaning of KRS 532.350(1). Gamble v. Commonwealth, 293 S.W.3d 406, 410 (Ky. 

App. 2009).
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with the child support payment conditions. Id. By the time of their hearings, 

Marshall and Johnson had each failed to make any payments for more than a year 

and were thousands of dollars behind on their support obligations. Id. at 824. At 

the revocation hearings, the trial court allowed Marshall and Johnson to present 

evidence to explain their failure to make the required payments, but this Court 

found the trial court’s findings inadequate. This Court vacated the orders revoking 

probation and the Supreme Court of Kentucky agreed. The trial court needed to 

determine “(1) whether each defendant had made sufficient bona fide efforts to 

make payments but was unable to do so from no fault of his own and, if so, (2) 

whether alternatives to incarceration would suffice to accomplish the 

Commonwealth’s punishment and deterrence objectives.” Id. at 833. The 

Marshall Court found that lack of payment alone is not sufficient to prove a willful 

refusal to pay. Id. The trial court must specifically identify the evidence it relies 

upon in making these determinations on the record, as well as the specific 

reason(s) for revoking probation on the record. Id. at 833-34.

Here, the Commonwealth points out that Brewer remitted payments 

only after motions to remove him from diversion had been made. The 

Commonwealth argues that termination of diversion was appropriate because

Brewer failed to make payments in accordance with his diversion agreement. The 

trial court agreed, pointing out that “[t]he only payment that Mr. Brewer made in 
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2020 . . . was by way of a tax intercept. No payments have be[e]n made since 

July 31, 2020.” However, the trial court did not inquire as to why Brewer did not 

pay. There was no evidence presented about whether or not Brewer was employed

at the time of the August 2021 Hearing,

4 his level of education, any health reasons 

preventing or limiting employment, or if the COVID-19 pandemic affected his 

ability to find employment. In fact, the record suggests that the court stopped 

Brewer from explaining why he had not made the required payments. At the 

August 2021 Hearing, the record suggests that Brewer’s legal counsel was 

attempting to explain why he had not paid – possibly because he was paying on 

another child support case5 – but the court ended that line of questioning, 

sustaining the Commonwealth’s objection as to relevance. However, where

Brewer was spending his money, if he was sending money somewhere, is part of 

the analysis as to whether “the probationer has made sufficient bona fide efforts to 

4 On September 5, 2019, Brewer’s attorney stated on the record, “I think he’s having trouble 

getting on his feet a little bit, but I think going forward he knows how serious this obligation is, 

so if we could give him a bit more time.” On February 6, 2020, before appointing legal counsel, 

the court asked Brewer if he had gainful employment. Brewer replied, “I’m hitting and missing 

right now . . . winter months . . . it’s been difficult.” The court asked if he owned real estate, a 

vehicle or bank account, to which Brewer answered in the negative for each. On July 1, 2021, 

again before appointing legal counsel, the court asked Brewer if he had a job, real estate, a 

vehicle or bank account. To each, Brewer again answered “no.” However, at the August 2021 

Hearing, the court did not repeat any of these questions nor ask Mr. Brewer any questions 

regarding his employment status.

5 The record reflects Brewer did have another child support case; on June 20, 2019, the trial court 

conducted a combined guilty plea hearing for this case (18-CR-00606, Boyd County) and a 

companion case involving a different child (18-CR-00607, Boyd County).
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pay but has been unable to pay through no fault of his own[.]” Marshall, 345 

S.W.3d at 823-24.

The Commonwealth argues that Brewer bore the burden of proving he 

was unable to make payment through no fault of his own. “Brewer’s testimony 

was brief, and he did not allege that he had been unable to make the payments or to 

find sufficient employment.” The Commonwealth points to the Marshall Court:

“[W]e have not been cited to any authority, nor do we know of any, that requires 

the Commonwealth to bear the burden of proving the reasons Gamble failed to 

make such payments. This is a matter that would be within the knowledge of 

Gamble himself.” Marshall, 345 S.W.3d at 834 (quoting Gamble, 293 S.W.3d at 

411). We agree that “the probationer bears the burden of persuading the trial court 

that he made bona fide efforts to comply with payment conditions but was unable 

to do so through no fault of his own.” Id. at 834 n.49. However, “[t]he trial court 

must afford the probationer an opportunity to present evidence of reasons for 

nonpayment but may focus consideration on post-plea changes if defendant entered 

a guilty plea to flagrant nonsupport, particularly where he agreed to make 

payments under a plea agreement.” Id. (emphasis added). Here, the trial court 

stopped Brewer from presenting evidence of his reasons for non-payment.

The Commonwealth argues that Brewer cannot “plausibly claim that 

there is a substantial possibility of a different outcome if the [August 2021 
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Hearing] had been somehow conducted differently” because he is “an apparently 

healthy, 41-year-old male who has never alleged any physical or mental 

infirmities.” The Commonwealth argues that Brewer’s apparent health and 

workability distinguishes this case from others recently before this Court, citing

Lainhart v. Commonwealth, 534 S.W.3d 234 (Ky. App. 2017). In Lainhart, Sonya 

Lainhart pleaded guilty to flagrant non-support for which she was placed on felony 

diversion for five years and ordered to pay arrears. Id. at 236. Lainhart testified 

that she only made ten payments over two years6 because she had serious health 

conditions and a doctor had placed her on complete work restriction. Id. She also 

stated that her lack of education and a felony on her criminal record made finding 

work difficult. Id. “Following Lainhart’s testimony, the court found that Lainhart 

had entered into a diversion agreement, failed to pay, and could not effectively be 

managed in the community because she did not ‘do what she was supposed to 

do’. . . . The court concluded that Lainhart could not be managed in the 

community because she ‘won’t do as she agreed.’” Id. However, this Court 

vacated and remanded for further findings, in part, because “[t]he [trial] court . . . 

failed to make a finding on the record regarding whether the nonpayment was 

willful, and if not, whether alternative measures would adequately serve the 

6 Lainhart admitted that her parents actually made all the payments because she was unable to 

work. Lainhart, 534 S.W.3d at 236. 
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Commonwealth’s interests. To deprive Lainhart of her conditional freedom 

without making such findings was a violation of due process.” Id. at 239. This

Court found that violation resulted in a manifest injustice and was therefore 

palpable error. Id. However, Brewer’s possible good health does not negate a trial 

court’s duty to determine his reasons for non-payment.

There was no evidence presented at the August 2021 Hearing showing 

Brewer was unwilling to pay his child support obligations, only that he failed to do 

so. Failing to make findings on the record – as mandated by Bearden and 

Marshall – deprives Brewer of his conditional freedom and was a violation of due 

process. That violation resulted in a manifest injustice and was therefore palpable

error. On remand, the trial court is directed to find whether Brewer made a 

sufficient bona fide effort to pay his child support obligations but was unable to do 

so through no fault of his own. If so, the trial court must determine whether 

alternative punishments would accomplish the Commonwealth’s punishment and 

deterrence objectives. As in Mbaye v. Commonwealth, 382 S.W.3d 69, 72 (Ky. 

App. 2012), “we note that the trial court may very well reach the same result and 

that remanding this for additional findings may appear to be an inconsequential use 

of judicial time and effort.” We recognize that plea agreements such as Mr. 

Brewer was offered should be enforced and defendants should not escape 

responsibility for failing to comply with a condition they agreed to and the Court 
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permitted. Marshall, 345 S.W.3d at 830. Nonetheless, we are compelled to follow

Bearden and Marshall, as is the trial court. 

B. Findings under KRS 439.3106

Diversion termination proceedings are handled the same as probation

revocation proceedings. KRS 533.256(2). Therefore, this Court must address 

whether the trial court also considered the provisions of KRS 439.3106 before 

termination. Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014). KRS

439.3106(1) states that defendants on probation 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.

Focusing on KRS 439.3106(1)(a),

7 Brewer argues that the record does 

not support the trial court’s finding that (1) Brewer was a significant risk to the 

community and (2) could not be managed in the community. We agree, in part. 

7 KRS 439.3106(1) includes the conjunction “or” and therefore the statute requires satisfaction of 

either (a) or (b), not both. Therefore, we need not address KRS 439.3106(1)(b).
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This Court may look at both the written and oral records to determine 

if the trial court addressed the statutory criteria. Commonwealth v. Gilmore, 587 

S.W.3d 627, 630 (Ky. 2019). Additionally, we appreciate that deference must be 

given to the trial court’s adjudications in diversion terminations and probation 

revocations.

While KRS 439.3106(1) indubitably requires entry of 

two vital findings of fact, it does not do so at the expense 

of the trial court’s discretion over the broader matter of 

revocation. Andrews at 780. Accordingly, the 

importance of certain facts is not ours to weigh on 

appeal, but is properly left to the trial court’s exclusive 

discretion. Our proper role is merely to evaluate the 

sufficiency of the evidence and whether an abuse of the 

trial court’s discretion occurred. To hold, or to do, 

otherwise would be to invade the province of fact finding 

best occupied by our trial courts.

McClure v. Commonwealth, 457 S.W.3d 728, 734 (Ky. App. 2015). However, 

despite that deference, the trial court is still required to make express findings as to 

KRS 439.3106. Hall v. Commonwealth, 566 S.W.3d 578, 581 (Ky. App. 2018). 

“There must be proof in the record established by a preponderance of the evidence 

that a defendant violated the terms of his release and the statutory criteria for 

revocation has been met.” Helms v. Commonwealth, 475 S.W.3d 637, 645 (Ky. 

App. 2015).

First, Brewer challenges the trial court’s finding that he was a 

significant risk to the community. The trial court found Brewer is “a danger to the 
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community because he fails to comply with known orders.” The trial court 

referenced the “difficulty in bringing him before the Court” and his failure to abide 

by the terms of his diversion, i.e., non-payment of his child support obligations. 

However, Brewer argues, “[t]he trial court failed to articulate how Mr. Brewer’s 

failure to appear one time to court on November 20, 2019, made him a danger to 

the community on August 5, 2021, much less a significant risk to the community, 

as required by statute.” It is true that a probationer need not commit some 

“heinous act” before he can be found to be a significant risk. McClure, 457

S.W.3d at 733. However, here we find very little in the record, heinous or minor,

to support a finding that Brewer was a significant risk to the community.

The August 2021 Hearing – terminating Brewer’s diversion and 

imposing a sentence of five years – lasted four minutes and 34 seconds. CW Blair 

testified for two minutes and 22 seconds; within that short amount of time, she

recited Brewer’s arrears but did not have knowledge of Brewer’s second child 

support case. Next, Brewer testified on his own behalf for one minute and 10 

seconds. At the beginning of his testimony, Brewer was stopped from answering 

questions proposed by his legal counsel. After Brewer’s short testimony, the court 

ended the August 2021 Hearing without asking any questions.

Recently, this Court affirmed a revocation where the probationer 

willfully and repeatedly failed to pay child support, but in that termination hearing, 
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the trial court questioned the probationer “extensively about his work, family, and 

medical histories[.]” Embry v. Commonwealth, 561 S.W.3d 360, 362 (Ky. App. 

2018). Here, the record does not reflect any additional criminal history beyond 

Brewer’s failure to pay; no evidence was given to show Brewer had a tendency 

toward violence, combativeness with the court, drug addiction, or had made threats 

to the child, the child’s mother or the community at large; the record does not 

reflect whether Brewer failed to keep an updated address with the child support 

office or evidence that his prior failure to appear was a willful avoidance of the 

court; nor was evidence presented to suggest Brewer was at risk of future criminal 

behavior. The trial court must make the requisite findings of fact to determine if 

Brewer would pose a significant risk. Andrews, 448 S.W.3d at 780. Precedent 

tells us that “perfunctorily reciting the statutory language in KRS 439.3106 is not 

enough.” Helms, 475 S.W.3d at 645. Accordingly, we must agree with Brewer 

that the trial court did not make findings, in either its written or oral rulings, 

sufficient to show he constituted a significant risk to the community at large 

pursuant to KRS 439.3106(1)(a).

Second, Brewer argues that the trial court solely relied upon Brewer’s 

failure to pay child support to determine that he could not be managed in the 

community. Brewer argues that he was being successfully managed in the 

community because his failure to appear was almost two years prior to the August 
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2021 Hearing, and he served 35 days and paid $500 after that failure to appear. 

The Commonwealth points out that despite the graduated sanctions, including jail 

time for contempt, Brewer was still not sufficiently motivated to pay his child 

support obligations. In fact, his only payments on the arrears came after an arrest 

or tax intercept. The trial court found that Brewer “has been given ampl[e] 

opportunity through progressive discipline to attempt to comply. He refuses. 

There is no effort on the part of Mr. Brewer as no payments even of some small 

amount were made since July of last year. As a result, Mr. Brewer is unable to be 

managed in the community on his diversion.” We agree. 

Accordingly, in considering oral and written findings together, the 

record supports the Boyd Circuit Court’s findings that Brewer could not be 

managed in the community. However, the Boyd Circuit Court’s findings were 

inadequate as to the determination that Brewer is a significant risk to the 

community. Therefore, under the palpable error standard of review, the trial 

court’s decisions must be vacated for full consideration of the statutory criteria and 

the entry of appropriate findings. Walker v. Commonwealth, 588 S.W.3d 453, 459

(Ky. App. 2019). On remand, a new diversion termination hearing must be held 

before the Boyd Circuit Court at which time counsel may present testimony and 

make arguments as to why Brewer’s diversion should not be terminated. We 

express no opinion on the ultimate merits. Again, while we believe that there is a 
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“substantial possibility” that the result would have been different but for the error,

that is ultimately a decision for the trial court. McClure, 457 S.W.3d at 734. See

also Andrews, 448 S.W.3d at 780.

IV. CONCLUSION

For the foregoing reasons, we VACATE the order of the Boyd Circuit 

Court terminating Brewer’s diversion and REMAND for further proceedings 

consistent with this Opinion.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Shannon Dupree

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Thomas A. Van De Rostyne

Assistant Attorney General

Frankfort, Kentucky