Background
In February 2023, Christian Dominguez was arrested after police discovered a loaded .38 revolver in his pocket during a domestic incident at a Waffle House in Campbell County. He tested highly intoxicated and possessed 3.5 oxycodone pills. A grand jury indicted him on two counts: first-degree possession of a controlled substance (felony) and third-degree terroristic threatening (misdemeanor).
Dominguez and the Commonwealth entered a plea agreement. He pled guilty and was admitted to a two-year felony diversion program for the drug charge, with concurrent probation on the terroristic threatening charge. The court imposed a condition that he not violate any law of Kentucky or any other state. In October 2024, while under diversion supervision, Dominguez was arrested in Warren County, Ohio, on a domestic violence charge—a violation of his diversion conditions. The trial court terminated his diversion participation and imposed probation.
Dominguez appealed, arguing the trial court violated KRS 439.3106(1) by failing to make specific factual findings before terminating diversion: that his failure to comply posed a “significant risk” to victims or the community, and that he “cannot be appropriately managed in the community.”
The Court’s Holding
The Kentucky Court of Appeals affirmed the trial court’s order. The critical issue was whether the statutory findings Dominguez demanded were required when diversion is terminated. KRS 439.3106(1) establishes two separate pathways when a supervised person violates conditions. Section (1)(a) authorizes revocation and possible incarceration and requires the court to find the defendant poses a significant risk and cannot be managed in the community. Section (1)(b) authorizes sanctions “other than revocation and incarceration” and requires only that the court balance the risk of future criminal behavior against available community interventions.
The court held that these statutory findings are not prerequisites to diversion termination generally, but specifically to the sanction of incarceration. Here, the trial court chose probation (a lesser sanction) rather than incarceration—falling squarely under section (1)(b). The court therefore did not need to make the more stringent section (1)(a) findings. The record demonstrated the trial court properly struck the statutory balance under section (1)(b) between risk of future criminal behavior and available community interventions.
The court rejected Dominguez’s misreading of legislative intent, emphasizing that the statute must be construed as a whole. The section (1)(a) criteria protect a felon’s privilege of avoiding immediate imprisonment; they apply only when that privilege is actually revoked through incarceration, not when a lesser sanction is imposed.
Key Takeaways
- The choice of sanction determines which statutory findings are required: incarceration-level revocation triggers strict factual findings under KRS 439.3106(1)(a); lesser sanctions are governed by the more flexible balancing test in section (1)(b).
- Trial courts have discretion to impose intermediate sanctions (such as probation) when diversion violations are proven, without making the demanding findings required for incarceration.
- Statutory prerequisites are not prerequisites to an action generally but only to the specific outcome they protect; here, the section (1)(a) findings protect the privilege of avoiding incarceration.
- Probation termination follows the same rules as revocation of probation itself under KRS 533.256(2).
Why It Matters
This decision clarifies a crucial ambiguity in Kentucky diversion and probation law. It establishes that the demanding factual findings required by KRS 439.3106(1)(a)—designed to protect a convicted person’s interest in remaining in the community—apply only when the trial court actually imposes incarceration. When a trial court imposes a lesser sanction like probation, it operates under the more flexible standard of section (1)(b), which gives courts meaningful discretion to calibrate the response to a violation.
For practitioners and diversion participants, the decision matters significantly: it affects what a trial court must find before imposing a particular sanction for violations. It also demonstrates how statutory interpretation works when statutes contain multiple conditional pathways—each provision’s requirements are tied to the specific outcome it governs, not applied universally to all actions within the statute’s scope. This principle extends beyond diversion law to probation revocation and similar supervisory contexts where graduated sanctions exist.