RENDERED: JANUARY 22, 2021; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth o f Kentucky Court of Appeals

NO. 2020

- CA

- 0595

- M R

JUSTIN KIMBERLIN APPELLANT

APPEAL FROM HENRY CIRCUIT COURT v. HONORABLE KAREN A. CONRAD , JUDGE

ACTION NO S

. 17

- CR

- 00014 AND 17

- CR

- 00090

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION REVERSING AND REMANDING

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BEFORE: LAMBERT , MAZE , AND L. THOMPSON , JUDGE S

. LAMBERT , JUDGE: Justin Kimberlin appeals from the Henry Circuit Court ’ s final judgme nt and sentence of i mprisonment following the court ’ s order voiding his pretrial diversion

. Because the trial court failed to make findings required by
KRS 1 439.3106, we reverse and remand with instructions.

1 Kentucky Revise d Statutes.- 2

- Kimberlin was facing two separate counts of possession of a
contro lled 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 t wo 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

r epeatedly violate d 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 fro m 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 cou ld benefit from in

patient 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 co ntain mind

- altering compounds. Kratom DrugFacts, N AT ’ L INST
. ON DRUG ABUSE , https://www.drugabuse.gov/publication/drugfacts/kratom (last visited Jan. 21, 2021). At the tim e of this writing, kratom is not a federally

- banned substance . H owever, drug courts may forbid drug court participants from consuming it; see, e.g. , Croley v. Commonwealth , No. 2014

- CA

1775

- MR, 2015 WL 6437225 (Ky. App. Oct. 23, 2015).- 3

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number of Kimberlin’s violations of drug court rules before finding tha t 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 dr ug
court ,” without further reasoning or findings for its decision

. The trial co urt thereafter sentenced Kimberlin to a total of six years’ imprisonment

. This appeal follow ed

. 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. Lop ez , 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 unsuppo rted by sound legal principles. ’” Id . (quoting C ommonwealth 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- 4

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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 comm unity[.] Our courts have consistently held that this statutory provision requires a trial court “to consider whether a probatione r’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 findi ngs may be made orally or in a written order. Id

. Finally, as mentioned previously, “ t he new criteria for the revocation of probation set out in KRS 439.3106 also appli es 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 findi ngs required by KRS 439.3106. A review of the rec ord supports this argument; t he trial co urt did not make the required statutory findings, either oral ly or by written order , in accord with Andrews and its progeny. The- 5

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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, w e 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.

BRIEF S FOR APPELLANT: Molly Mattingly Frankfort , Kentucky BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Robert Baldridge Assistant Attorney General Frankfort, Kentucky