Summary
The Kentucky Court of Appeals reviewed the revocation of Billy McKenzie's probation following convictions for two counts of flagrant nonsupport. The court affirmed the probation revocation, concluding that McKenzie received due process and failed to demonstrate bona fide efforts to satisfy his child-support obligations. It reversed the imposition of consecutive sentences because the original sentencing orders did not specify consecutive terms, and remanded for concurrent five-year sentences.
Topics
Practice areas
Questions Presented
- Whether the trial court improperly ordered McKenzie's sentences to run consecutively upon revocation of probation when the original sentencing orders did not specify concurrent or consecutive terms.
- Whether the trial court violated due process by revoking probation for failure to make child-support payments without adequately considering McKenzie's bona fide efforts to pay and alternatives to imprisonment.
Holdings
- When the original sentencing court does not specify that multiple sentences will run consecutively, KRS 532.110(2) requires the sentences to run concurrently, and the court may not change them to consecutive sentences upon later probation revocation.
- The trial court acted within its discretion in revoking probation because the Commonwealth proved probation violations by a preponderance of the evidence, and McKenzie did not establish that he made bona fide efforts to pay or that his nonpayment was through no fault of his own after alternative measures had failed.
Key quotations
“Merely pleading guilty in two separate cases does not automatically give rise to consecutive sentencing.” (-4-)
“Ordering the sentences of imprisonment to run consecutively when revoking McKenzie’s probation was an improper modification of the judgment.” (-5-)
“To revoke probation, the Commonwealth need only prove by a preponderance of the evidence that a probationer has violated the terms of probation.” (-6-)
“Instead, upon consideration of a motion for revocation for failure to comply with payment conditions, a court must determine whether (1) the defendant has made sufficient bona fide efforts to make payments and, if so, (2) whether alternative punishments might satisfy the state’s penological interests or whether imprisonment is still necessary for the purposes of punishment or deterrence.” (-7-)
Factual background
McKenzie pleaded guilty to one count of flagrant nonsupport in each of two prosecutions involving children by two mothers. Each plea agreement provided for a five-year sentence probated for five years, conditioned on current child-support payments and payment of arrearages in monthly installments. During probation, McKenzie repeatedly failed to report, made very few payments, missed hearings, absconded from supervision, and did not comply with graduated sanctions. At the revocation hearing, he testified that full-time employment prevented him from reporting or completing the requirements, but he did not explain why he had failed to make substantial payments.
Procedural history
McKenzie pleaded guilty in two separate flagrant nonsupport prosecutions and received five-year sentences probated for five years subject to child-support payment conditions. After multiple failures to report, make payments, appear for hearings, and comply with graduated sanctions, the Boyd Circuit Court revoked probation and ordered the two sentences to run consecutively. The Kentucky Court of Appeals affirmed the revocation but reversed the consecutive-sentencing provision and remanded for imposition of concurrent sentences.
Remand instructions
The Boyd Circuit Court must impose the two five-year sentences to run concurrently, for a total of five years, while leaving the probation revocation affirmed.