WILLIAM WEAVER APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

WILLIAM WEAVER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2010–CA–001702–MR

Decided: February 17, 2012

BEFORE:  TAYLOR, CHIEF JUDGE;  LAMBERT AND THOMPSON, JUDGES. BRIEFS FOR APPELLANT:  Brandon Neil Jewell Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Christian K.R. Miller Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

William Weaver appeals from a judgment sentencing him to ten-years' imprisonment after he pled guilty to two counts of first-degree sexual abuse.   The sole issue presented is whether the trial court abused its discretion when it refused to impose probation with an alternative sentencing plan.

Weaver was indicted on four counts of first-degree sodomy and two counts of first-degree sexual abuse against victims under the age of twelve.   At the time of the offenses, he was seventeen but was nineteen at the time of sentencing.   Weaver entered an unconditional guilty plea to two counts of first-degree sexual abuse, victims under twelve years of age.   The trial court accepted the plea and ordered a sex offender evaluation pursuant to KRS 532.050.

At the sentencing hearing, defense counsel requested that Weaver receive twelve months jail service plus five years probated.   Copies of Weaver's comprehensive sex offender presentence evaluation and presentence investigation report were also introduced.   Testimony was presented from Dr. Zimmerman–Hicks, employed with the Department of Corrections' Division of Mental Health as an administrator of the Sex Offender Treatment Program, and Weaver's mother.

Dr. Zimmerman–Hicks testified that Weaver is a suitable candidate for the community-based sex offender treatment program and that community-based treatment would be appropriate because of Weaver's age, intellectual functioning, and social skills.   She also stated that the community-based treatment program involved more in-depth treatment and effective treatment than incarceration.   She opined that Weaver posed a low risk of sexual offense recidivism.

The trial court questioned Dr. Zimmerman–Hicks regarding whether Weaver expressed remorse.   She pointed out to the court that the comprehensive sex offender presentence evaluation states that Weaver voiced remorse when he stated, “I don't know why I did it.   I knew it was wrong.”   The trial court then questioned whether absent a recognition by Weaver of the harm caused to the victims, if treatment would be successful.   Dr. Zimmerman–Hicks responded that although it was a critical part of treatment, it was not required in the initial stage of treatment.

Weaver's mother testified that the family could provide financial and emotional support to Weaver if probated.   She further testified that he could reside with his sister who lives in an area that is not close to churches, schools, playgrounds, or daycares.

After completion of the testimony and arguments of counsel, a lengthy colloquy occurred among the court and defense counsel during which the trial court expressed concern regarding the reliability of the reports prepared based on information conveyed by Weaver.   Ultimately, the trial court found that although the reports suggested that Weaver was amenable to treatment and, statistically, community treatment had slightly better results than incarceration, it rejected the contention that it must accept the comprehensive sex offender evaluation and recommendation.   Instead, the trial court ruled that it remained within its discretion to grant or deny probation with an alternative sentencing plan.

After considering the report and its knowledge of the case, the trial court found that probation with an alternative sentencing plan was inappropriate.   Although the trial court did not find that Weaver was likely to commit another sex offense during a period of probation with an alternative sentencing plan, it found that incarceration would provide sex offender treatment and substance abuse treatment.   Further, through “correctional treatment,” Weaver would comprehend the seriousness of his crimes.   Most importantly, the trial court found that to grant probation or conditional discharge would unduly depreciate the seriousness of Weaver's conduct.

The trial court's decision regarding probation with an alternative sentencing plan is controlled by KRS 533.010, which provides in part:

(2) Before imposition of a sentence of imprisonment, the court shall consider probation, probation with an alternative sentencing plan, or conditional discharge.   Unless the defendant is a violent felon as defined in KRS 439.3401 or a statute prohibits probation, shock probation, or conditional discharge, after due consideration of the defendant's risk and needs assessment, nature and circumstances of the crime, and the history, character, and condition of the defendant, probation or conditional discharge shall be granted, unless the court is of the opinion that imprisonment is necessary for protection of the public because:

(a) There is substantial risk that during a period of

probation or conditional discharge the defendant

will commit another crime;

(b) The defendant is in need of correctional treatment

that can be provided most effectively by his commitment

to a correctional institution;  or

(c) A disposition under this chapter will unduly depreciate the seriousness of the defendant's crime.

(3) In the event the court determines that probation is not appropriate after due consideration of the defendant's risk and needs assessment, nature and circumstances of the crime, and the history, character, and condition of the defendant, probation with an alternative sentencing plan shall be granted unless the court is of the opinion that imprisonment is necessary for the protection of the public because:

(a) There is a likelihood that during a period of

probation with an alternative sentencing plan or conditional discharge the defendant will commit a Class D or Class C felony or a substantial risk that the defendant will commit a Class B or Class A felony;

(b) The defendant is in need of correctional treatment that can be provided most effectively by commitment to a correctional institution;  or

(c) A disposition under this chapter will unduly depreciate the seriousness of the defendant's crime.

The determination of whether or not to grant probation is left to the discretion of the trial court.  Brewer v. Commonwealth, 550 S.W.2d 474, 477 (Ky.1977).   Quoting the commentary to KRS 533.010, in Turner v. Commonwealth, 914 S.W.2d 343, 348 (Ky.1996), the Court explained that the statute offers guidelines to the trial court but does not divest it of discretion to order incarceration.

It is to be acknowledged that the trial court must be granted substantial discretion in deciding upon the disposition of convicted offenders.   This section provides criteria to guide the court in the exercise of that discretion by listing the legitimate reasons for imposing a sentence of imprisonment.

The abuse of discretion standard requires that an appellate court affirm the trial court's exercise of discretion unless the decision was “arbitrary, unreasonable, unfair or unsupported by sound legal principles.”   Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).

Recognizing that the decision to deny probation must be affirmed unless the trial court abused its discretion, Weaver argues that the trial court “interjected” itself into the rehabilitative process during final sentencing and “disregarded the findings of the professionals who administer and are associated with the Sexual Offender Treatment Program and who are well-educated in the treatment of such individuals.”   In doing so, he relies on our Supreme Court's statement in Turner cautioning trial court's to refrain from serving as gatekeeper of the Sexual Offender Treatment Program by denying probation because the defendant failed to acknowledge guilt.  Turner, 914 S.W.2d at 348.

In this case, the record reveals that although the trial court inquired whether remorse was a prerequisite to effective treatment of a sex offender and questioned whether Weaver had expressed remorse, it is evident that the trial court considered the statutory factors within KRS 533.010.   Its decision to deny probation with an alternative sentencing plan was based on its findings that correctional treatment was preferable over community treatment and that probation would unduly depreciate the seriousness of his crimes, not on Weaver's expression of remorse.

Although the reports considered by the trial court were prepared by a professional in the field of sex offender treatment, the trial court retains discretion to accept or reject the recommendations.   The statute expressly states that due consideration be given to the nature and circumstances of the crime and the history, character, and condition of the defendant.  KRS 533.010(2) and (3).   If the legislature intended that the evaluation control the decision to grant or deny alternative sentencing, it would have expressly set forth the limitation on the trial court's discretion.

Although the trial court expressed concern regarding the accuracy of the information conveyed to the evaluators by Weaver, it nevertheless considered the recommendations.   We conclude that the trial court did not abuse its discretion.

Based on the foregoing, the judgment of the Rockcastle Circuit Court is affirmed.

ALL CONCUR.

THOMPSON, JUDGE: