RENDERED: JANUARY 22, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0595-MR

JUSTIN KIMBERLIN APPELLANT

APPEAL FROM HENRY CIRCUIT COURT

v. HONORABLE KAREN A. CONRAD, JUDGE

ACTION NOS. 17-CR-00014 AND 17-CR-00090

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

REVERSING AND REMANDING

**   **  **

BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.

LAMBERT, JUDGE: Justin Kimberlin appeals from the Henry Circuit Court’s 

final judgment and sentence of imprisonment following the court’s order voiding 

his pretrial diversion. Because the trial court failed to make findings required by 

KRS1 439.3106, we reverse and remand with instructions.

 

1

 Kentucky Revised Statutes.
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Kimberlin was facing two separate counts of possession of a 

controlled substance (methamphetamine) when he negotiated a guilty plea with the 

Commonwealth in January 2018. As part of his plea, he agreed to a sentence of 

two consecutive three-year terms of imprisonment, which would be subject to 

supervised diversion for two years. Several months later, the Commonwealth 

moved to revoke Kimberlin’s diversion, alleging he had absconded from 

supervision. The parties resolved the issue by agreeing Kimberlin could remain on 

diversion by completing drug court. 

Unfortunately, over the course of the following year, Kimberlin 

repeatedly violated drug court rules, most often due to positive tests for kratom.

2

 

The trial court responded by extending his supervision period for two years. 

Finally, after Kimberlin was terminated from drug court, the trial court prepared to 

void his diversion and sentence him pursuant to his plea agreement. In a hearing 

held on March 12, 2020, Kimberlin’s defense counsel argued in favor of an 

alternative sentencing plan, contending that Kimberlin could benefit from inpatient treatment. Defense counsel also argued that Kimberlin could be treated in 

the community and was not a risk to the community. The trial court focused on the 

 

2

 “Kratom” is a plant native to Southeast Asia, the leaves of which contain mind-altering 

compounds. Kratom DrugFacts, NAT’L INST. ON DRUG ABUSE, 

https://www.drugabuse.gov/publication/drugfacts/kratom (last visited Jan. 21, 2021). At the time 

of this writing, kratom is not a federally-banned substance. However, drug courts may forbid 

drug court participants from consuming it; see, e.g., Croley v. Commonwealth, No. 2014-CA1775-MR, 2015 WL 6437225 (Ky. App. Oct. 23, 2015).
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number of Kimberlin’s violations of drug court rules before finding that Kimberlin 

had been given many opportunities to improve. The trial court then declared it was 

not convinced by counsel’s arguments and indicated it would sentence Kimberlin. 

In its order voiding diversion, the trial court only stated “terminated from drug 

court,” without further reasoning or findings for its decision. The trial court 

thereafter sentenced Kimberlin to a total of six years’ imprisonment. This appeal 

followed.

A trial court’s decision to void pretrial diversion uses the same criteria 

as a decision to revoke probation. Richardson v. Commonwealth, 494 S.W.3d 495, 

498 (Ky. App. 2015). “A decision to revoke probation is reviewed for an abuse of 

discretion.” Commonwealth v. Andrews, 448 S.W.3d 773, 780 (Ky. 2014) (citing

Commonwealth v. Lopez, 292 S.W.3d 878 (Ky. 2009)). “Under our abuse of 

discretion standard of review, we will disturb a ruling only upon finding that ‘the 

trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound 

legal principles.’” Id. (quoting Commonwealth v. English, 993 S.W.2d 941, 945 

(Ky. 1999)). 

A trial court traditionally has “broad discretion in overseeing a 

defendant’s probation, including any decision to revoke[.]” Andrews, 448 S.W.3d 

at 777. This traditional deference was somewhat qualified when, “[i]n 2011, the 

Kentucky General Assembly enacted the Public Safety and Offender 
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Accountability Act, commonly referred to as House Bill 463 (‘HB 463’).” Id. at 

776 (internal quotation marks omitted). Included as part of this legislation, KRS 

439.3106(1)(a) provides the following: 

Supervised individuals shall be subject to . . . [v]iolation 

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[.]

Our courts have consistently held that this statutory provision requires a trial court 

“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.” Commonwealth v. Gilmore, 587 S.W.3d 627, 630 (Ky. 2019) 

(quoting Andrews, 448 S.W.3d at 780). The trial court’s findings may be made 

orally or in a written order. Id. Finally, as mentioned previously, “the new criteria 

for the revocation of probation set out in KRS 439.3106 also applies to the 

voidance of diversion.” Richardson, 494 S.W.3d at 498.

For his sole issue on appeal, Kimberlin argues the trial court failed to 

make the appropriate findings required by KRS 439.3106. A review of the record 

supports this argument; the trial court did not make the required statutory findings, 

either orally or by written order, in accord with Andrews and its progeny. The 
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Commonwealth concedes the issue and admits the error below was palpable, citing 

Burnett v. Commonwealth, 538 S.W.3d 322, 324 (Ky. App. 2017). We agree.

For the foregoing reasons, we reverse the judgment and sentence of 

imprisonment imposed by the Henry Circuit Court. On remand, the trial court

shall conduct a new hearing on voiding Kimberlin’s diversion to allow the court to 

consider sanctions other than imprisonment. If the trial court finds Kimberlin 

should be incarcerated based on the findings outlined in KRS 439.3106, the trial

court shall explicitly state those findings for the record, either orally or by written 

order, before entering a new judgment.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Molly Mattingly

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Robert Baldridge

Assistant Attorney General

Frankfort, Kentucky