RENDERED: SEPTEMBER 16, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-1022-MR

JAMES TYLER CORNISH APPELLANT 

v. 

APPEAL FROM BELL CIRCUIT COURT

HONORABLE ROBERT V. COSTANZO, JUDGE

ACTION NO. 19-CR-00238

COMMONWEALTH OF KENTUCKY APPELLEE 

AND

NO. 2021-CA-1023-MR

JAMES TYLER CORNISH APPELLANT 

v. 

APPEAL FROM BELL CIRCUIT COURT

HONORABLE ROBERT V. COSTANZO, JUDGE

ACTION NO. 19-CR-00515

COMMONWEALTH OF KENTUCKY APPELLEE 
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OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, COMBS, AND MAZE, JUDGES.

ACREE, JUDGE: Appellant, James Cornish, appeals the Bell Circuit Court’s 

August 10, 2021 order revoking probation. Finding no error, we affirm.

Cornish brought two appeals which this Court consolidated for 

review. In No. 2019-CR-00238, a grand jury indicted Appellant on one count of 

theft by unlawful taking or disposition/auto under $10,000, and in No. 2019-CR00515, a grand jury indicted Appellant with one count of receiving stolen property 

under $10,000 and one count of persistent felony offender in the first degree. The 

facts of these underlying charges are irrelevant to this appeal. On March 30, 2021, 

Appellant pleaded guilty to the charges brought forth in both indictments.

Two months passed after Cornish’s guilty plea before the court 

sentenced Appellant because he failed to appear, either electronically via Zoom or 

in person before the court, at least six times. His sentence on each conviction was 

five years, to run concurrently, but the trial court probated both sentences.

As a part of his probation, the court required Appellant to report to his 

parole officer, Sydney Stewart, on May 27, 2021 – six days after sentencing. 

Appellant failed to appear that day, prompting Stewart and another parole officer 

to conduct a home visit. During this visit, the parole officers discovered 
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Appellant’s home address was an uninhabitable property that had burned down. 

When confronted about this, Appellant said he was homeless and gave the address 

because he thought he had to. However, this event set off a series of events 

culminating in Stewart filing a violation-of-supervision report. 

After falsifying his place of residence, Appellant asked to transfer his 

parole to Missouri, which Stewart said she would attempt to do but Appellant had 

to stay in daily contact. Appellant did not comply. Instead, he purchased a bus 

ticket to Missouri and, a week after doing so, contacted Stewart about his requested 

transfer. Stewart told him his transfer was not approved and told him to report the 

next day. He did not report, and Appellant stopped all communication with 

Stewart. Thereafter, a probation-violation warrant was issued against Appellant 

for absconding. 

On July 1, 2021, law enforcement arrested Appellant on the 

probation-violation warrant. At his arrest, law enforcement found Appellant in 

possession of two used syringes. The court scheduled Appellant’s probation 

revocation hearing for August 2, 2021, and heard the facts mentioned above in the 

form of testimony from Parole Officer Stewart.

At the hearing, Appellant testified. He told the court he had a bed 

available at Redemption Road, and prior to being arrested, Appellant lived with 
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someone named Sereda. However, based on the numerous times Appellant failed 

to cooperate, the circuit court revoked Appellant’s parole. This appeal follows.

When reviewing a circuit court’s decision to revoke a parolee’s 

probation, we review for abuse of discretion. Commonwealth v. Andrews, 448 

S.W.3d 773, 780 (Ky. 2014) (citing Commonwealth v. Lopez, 292 S.W.3d 878, 881 

(Ky. 2009)). Accordingly, this Court “will disturb a ruling only upon finding that 

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

sound legal principles.’” Andrews, 448 S.W.3d at 780 (quoting Commonwealth v. 

English, 993 S.W.2d 941, 945 (Ky. 1999)).

“Without question, the power to revoke probation is vested in the trial 

courts and in the trial courts alone.” Andrews, 448 S.W.3d at 777. However, when 

exercising this power, revocation of parole must comply with KRS1 439.3106. 

Under this statute:

(1) 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 

1 Kentucky Revised Statutes.
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the need for, and availability of, interventions which 

may assist the offender to remain compliant and crimefree in the community.

KRS 439.3106(1). Relevant here, when revoking parole, a circuit court must make 

findings that a probationer poses a significant risk to prior victims, or the 

community, and the probationer cannot be appropriately managed in the 

community pursuant to KRS 439.3106(1)(a). Andrews, 448 S.W.3d at 780. 

When making these findings, “perfunctorily reciting the statutory 

language in KRS 439.3106 is not enough.” Helms v. Commonwealth, 475 S.W.3d 

637, 645 (Ky. App. 2015). Rather, “[t]here 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.” Id. When we 

undertake appellate review, we must “look to both the written and oral findings in 

conjunction with one another and not separately in a vacuum.” Commonwealth v. 

Gilmore, 587 S.W.3d 627, 630 (Ky. 2019).

While the circuit court’s written order is thin on analysis, it 

demonstrates more than a perfunctory recitation of the statutory requirements in 

KRS 439.3106. The record is clear Appellant violated the terms of his probation, 

and his behavior falls well within requisite behaviors for revoking probation 

contemplated by KRS 439.3106. Namely, Appellant failed to report to his parole 

officer and failed to take any meaningful steps to comply with the terms of his 
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parole. Further, when law enforcement executed the probation-violation warrant 

against Appellant, law enforcement found him in possession of two used syringes. 

In its written order, the circuit court stated: 

The Court has considered the requirements of KRS 

439.3106(1) and FINDS that the Defendant’s failure to 

abide by the conditions of probation constitutes a 

significant risk to the community and that the Defendant 

cannot be managed in the community. Further, the Court 

FINDS that there is a substantial risk that the Defendant 

will commit another violation during any extended period 

of probation, that the Defendant is in need of correctional 

treatment that can be provided most effectively by his 

commitment to a correctional institution, and that further 

probation would unduly depreciate the seriousness of the 

Defendant’s crime.

(Record at 82.) 

In Hall v. Commonwealth, this Court affirmed a probationer’s 

revocation of parole where a circuit court used language similar to that employed 

by the Bell Circuit Court to revoke parole in the case sub judice. 566 S.W.3d 578, 

581 (Ky. App. 2018). In Hall, a court granted Hall probation from a three-year 

sentence, and as part of his conditions on parole, Hall had to make restitution 

payments, refrain from using illegal substances, and regularly report to his parole 

officer. Id. at 580. Hall failed to fulfill each condition and even absconded from 

the state. Id. The circuit court revoked parole, stating: 

Having given due consideration to the nature and 

circumstances of the crime, as well as the history, 

character, and condition of the Defendant, and any matters 
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presented to the Court by the Defendant and his counsel, 

and considering the likely impact of a potential sentence 

on the reduction of the Defendant’s potential future 

criminal behavior, and the Court having found that the 

Defendant constitutes a significant risk to the community 

at large and cannot be appropriately managed in the 

community, this Court finds that imprisonment is 

necessary for protection of the public because the 

Defendant is in need of correctional treatment that can be 

provided most effectively by the Defendant’s commitment 

to a correctional institution, and that probation with an 

alternative sentencing plan or conditional discharge would 

unduly depreciate the seriousness of the Defendant’s 

crime.

Id. at 581. Hall challenged this as too perfunctory to survive scrutiny under KRS 

439.3106. We disagreed and affirmed the parole revocation. Id.

Not only does the language here parallel the language the court used 

in Hall, but also Hall’s failure to cooperate with his terms of parole mirrors 

Appellant’s failure to cooperate with the conditions of his parole. Neither properly 

reported to their parole officer, and both failed to maintain contact with their 

respective parole officers. We find no substantive distinctions between this case 

and Hall.

The Bell Circuit Court did not abuse its discretion when it revoked 

Appellant’s parole. Therefore, we affirm.

ALL CONCUR. 
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BRIEFS FOR APPELLANT:

Jennifer Wade

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky 

Melissa A. Pile

Assistant Attorney General 

Frankfort, Kentucky