Timothy Estepp v. Commonwealth of Kentucky - Vacating and Remanding

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April 10, 2026 Get Citation Alerts Download PDF Add Note

Timothy Estepp v. Commonwealth of Kentucky

Court of Appeals of Kentucky

• Citations: None known
• Docket Number: 2024-CA-1184
• Precedential Status: Non-Precedential
• Judges: Eckerle

• Disposition: OPINION VACATING AND REMANDING

• Opinion

• Authorities (7)

• Cited By (0)

• Summaries (0)

• Similar Cases (396)

• PDF

Disposition

OPINION VACATING AND REMANDING

Combined Opinion

RENDERED: APRIL 10, 2026; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2024-CA-1184-MR

TIMOTHY ESTEPP APPELLANT

APPEAL FROM CAMPBELL CIRCUIT COURT
v. HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NO. 22-CR-00322

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION
VACATING & REMANDING

---

BEFORE: THOMPSON, CHIEF JUDGE; COMBS AND ECKERLE, JUDGES.

ECKERLE, JUDGE: Appellant, Timothy Estepp (“Estepp”), seeks review of the

Campbell Circuit Court’s Order dated August 29, 2024, voiding his felony

diversion and sentencing him to three years, probated for three years in accordance

with his guilty plea to Theft by Unlawful Taking (“TBUT”) under $10,000

(Controlled Substance). Estepp argues that the Trial Court abused its discretion by

failing to make the requisite findings according to Kentucky Revised Statute
(“KRS”) 439.3106. He also contends that the Trial Court committed palpable error

by increasing the sum of his monthly restitution payments. After careful

consideration and thorough review, we vacate the Trial Court’s order because it

stated insufficient findings and remand for further proceedings. Because we are

not finding that the Trial Court’s ultimate conclusion that diversion should be

removed is an abuse of discretion or otherwise incorrect, we are not reversing the

decision. However, upon remand we are requiring the Trial Court either to

delineate its reasoning and required conclusions to support its decision or to reach

a different decision.

I. Factual and Procedural History

On August 18, 2022, the Campbell County Grand Jury indicted

Estepp for TBUT under $10,000 (Controlled Substance). Although not specified

in the indictment, the Trial Court questioned Estepp at a hearing on March 14,

2023, and he admitted to stealing 120 oxycodone pills and other scheduled drugs

from Walgreens “for a friend.” Video Record Supplemental (“VR Supp”),1 2023-

03-13 at 1:35-2:45. It is not clear whether this large, lethal amount of narcotics

1
The Video Record consists of two CD-ROM discs, one marked “2024-CA-1184, Tim Estepp,
22 CR 322,” and a second marked “Supplemental 24-CA-1184, 22 CR 322,” which we will
reference “VR” and “VR Supp,” respectively. The “VR Supp.” disc contains hearings conducted
prior to and at Estepp’s plea and preliminary dispositional hearing, and the “VR” disc contains
hearings occurring after his plea and felony diversion agreement. As noted by the parties, the VR
does not contain the usual date and time stamps. Times referenced are from the runtime of the
video clip.

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entered the illicit drug trade but it is certain to have had less than a benign effect.

The Commonwealth confirmed that the drugs were never recovered; but it reported

that Estepp had assisted in the investigation and determination of the restitution

owed to Walgreens. Id., at 3:47-4:10. Estepp now contests restitution. And it

appears that he did not provide the names of the individuals who received the

contraband directly from him. Apparently, no one else was prosecuted. The Trial

Court expressed some reluctance at the Commonwealth’s generous offer of

diversion under the circumstances. However, it ultimately accepted Estepp’s

guilty plea and approved the felony diversion agreement, pursuant to which Estepp

received a supervision term of five years, conditioned upon his agreement to pay

restitution in the amount of $26,409.61, with the first payment of at least $440 due

within 30 days. Trial Record (“TR”), pp. 42-44. The Trial Court also conditioned

its approval of pretrial diversion on Estepp’s being evaluated for substance abuse

and following up on all recommended treatment; submitting his residence to the

Division of Probation and Parole (“P&P”); not changing his residence without the

approval of his P&P officer; and following the provisions of the pretrial diversion

agreement and all other standard conditions of supervision. TR, pp. 39-41.

Later that same year, in November of 2023 and again in December of

2023, Estepp filed a request with the Interstate Compact Offender Tracking System

(“ICOTS”) for a transfer of supervision to Ohio. Kentucky P&P submitted both of

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Estepp’s ICOTS requests to the Ohio Adult Parole Authority (“Ohio APA”), which

denied each request. TR, p. 55.

Not long afterward, on January 30, 2024, Officer Konner Frost

(“Frost”) with P&P filed a Violation of Supervision Report (“VSR”) and affidavit

alleging that Estepp had violated the conditions of the felony diversion program by

failing to make his regularly scheduled restitution payments. TR, pp. 45-47. Frost

alleged that between March of 2023 and January of 2024, Estepp had paid only

$1,100 toward his restitution, leaving a deficit of $4,400 that he should have paid

over ten months. Id. On February 27, 2024, the Trial Court conducted the first

felony diversion termination hearing in this case. Estepp stipulated to the violation

and advised the Trial Court that he anticipated both a salary increase and rent

savings by getting a roommate. VR, 2023-02-27, at 2:04-3:24. Based on the

foregoing, the Trial Court found “that although [Estepp] violated his felony

diversion . . . he [was] still manageable in the community provided he begins

making regular monthly payments toward the restitution owed.” TR, p. 53. The

Trial Court set Estepp’s monthly restitution payments at the same sum of $440 to

begin March 13, 2024, and to be paid on the 13th of the month thereafter until paid

in full. Id.

Not quite eight months after the first VSR, on August 5, 2024, Frost

filed a second VSR, accompanied by an affidavit, alleging that Estepp had again

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violated the conditions of the felony diversion program. TR, pp. 54-56. Frost

alleged that Estepp had: (1) failed to report to P&P as directed; (2) provided a

false home address to P&P, indicating that he resided in Highland Heights,

Kentucky, when he actually was residing in Cincinnati, Ohio; (3) failed to report to

P&P his change of address to Cincinnati, Ohio, having left the area of his

supervision without authorization and against the express denials of an ICOTS

transfer; and (4) failed to progress with his regular monthly restitution payments.

Id. The Trial Court conducted a hearing on August 27, 2024, at which Estepp

stipulated to the violations. VR, 2024-08-27, 0:28-0:35.

At the hearing, Estepp called his brother to testify as a character

witness. VR, 1:10. His brother testified that Estepp served in the U.S. Army,

formerly in active, deployed duty, and then as a firearms trainer with the U.S.

Army National Guard. VR 1:40-2:32. He also testified that Estepp was employed

as a body piercer with “Ballistic” tattoo shop. VR, 2:33-2:40. In response to

questioning by Estepp’s counsel, the brother testified that Estepp was allowed to

carry a firearm and that he had called Estepp while he was on the firing range

training soldiers. VR, 2:40-3:00. However, Estepp contradicted this information

under oath, testifying that his employment as a marksmanship instructor was

procedural in nature, educating his fellow soldiers in the steps necessary for their

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firearms qualification, and that he did not possess, use, or have access to firearms

or ammunition. VR, 9:19-53.

Estepp argued that he should be sanctioned but allowed to remain on

diversion. VR, 3:20-30. Via counsel, Estepp conceded that missing his home

visits from P&P while “going to see his girlfriend” was “stupid,” but insisted that

he was not a danger to the community. VR, 3:30-45. Counsel also described

Estepp’s incarceration for 30 days pending his hearing as a “sanction” and a

“wake-up call.” VR, 3:45-4:00, 5:24-5:37. Despite stipulating to the VSR, which

stated that he had failed to make significant progress toward restitution, Estepp

claimed that he had been making regular payments and, at that time, could

reasonably afford the monthly restitution payments to which he had agreed. He

asked the Trial Court to consider his important and “selfless” job as a member of

the military. VR, 4:00-4:25. Finally, he argued that, outside of the failure to be

present for the home visit, he was meeting the requirements of P&P and was an

asset to the community. VR, 4:50-5:20.

The Commonwealth argued that Estepp knowingly left the area of his

supervision, violated the terms of his felony diversion by not only visiting his

girlfriend in Cincinnati but also living at his girlfriend’s house after being twice

denied an ICOTS transfer, and then provided a false address to P&P. VR, 5:50-

6:20. Also, after the testimony of Estepp’s brother, the Commonwealth expressed

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concern that, incidental to his employment as a weapons trainer with the U.S.

Army National Guard, Estepp had access to firearms, and this proximity was

expressly prohibited by his felony diversion agreement. VR, 6:28-48.

The Trial Court considered whether Estepp posed a “danger to the

community.” VR, 2024-08-27, 15:25-58. Observing that, as a soldier and national

guardsman, Estepp had been taught that rules are to be followed “to a tee,” the

Trial Court explained that felony diversion was Estepp’s opportunity to

demonstrate that he could follow the rules. VR, 14:24-45 and 15:45-58. Instead,

Estepp had violated the rules by not paying restitution and lying about where he

was living. The Trial Court then addressed Estepp’s claimed justifications for

continuing on diversion:

When your attorney says that you’re not a “danger to the
community,” . . . the problem [is] that [if] someone is not
willing to tell the truth or follow the rules, what else have
they been doing and just haven’t been caught, yet. It is
hard to know if you are a danger to the community.

VR, 17:40-18:10. The Trial Court concluded that felony diversion was no longer

appropriate. Id., 19:30-50. The Trial Court then moved to the issue of sentencing

Estepp, who waived any need to obtain a new pre-sentencing investigation report.

VR, 23:44-24:10. Thereafter, the Trial Court accepted the Commonwealth’s

recommendation and, in accordance with Estepp’s guilty plea to TBUT under

$10,000 (Controlled Substance), sentenced him to three years, probated for three

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years upon the terms and conditions set by P&P. VR, 24:30-35. The Trial Court

also recalculated Estepp’s monthly restitution payments to $644.71 in order to pay

off the remaining sum within his three-year probationary period. VR, 24:37.

Estepp did not object to the recalculated payments. Id.

The Trial Court issued a written order on August 29, 2024, finding

that Estepp had stipulated to failing to make regularly scheduled restitution

payments, failing to report to P&P as directed, failing to provide his change of

home address, and providing false information to P&P. TR, pp. 61-64. The Trial

Court concluded that Estepp violated the terms and conditions of his felony

diversion and, based on a preponderance of evidence, it “terminated” Estepp’s

felony diversion. Id. Unlike its prior Order continuing diversion, the Trial Court

did not put in writing any findings or conclusions as to whether Estepp posed a

significant danger to his prior victim, Walgreens, or to the community at large, or

whether Estepp was manageable in the community. Id. The Trial Court formally

sentenced Estepp to three years, probated for a period of three years upon terms

and conditions set out by P&P. Id., p. 63. The Trial Court’s written order also

required Estepp to make monthly restitution payments of $644.71 until the total

sum of $26,620.19, to which he had agreed, had been paid in full. Id.

On appeal, Estepp argues that the Trial Court abused its discretion in

voiding his diversion and probating him without making the proper statutory

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prerequisite findings for revocation. He also argues that the Trial Court lacked the

authority to raise his restitution payments and erred when it did so without making

an inquiry into his financial circumstances. The Commonwealth asks us to affirm

the Trial Court’s Order, as the preponderance of the evidence supporting the

violations, to which Estepp stipulated, validates that Estepp was a significant

danger to the community and could not be managed on diversion. Further, the

Commonwealth argues that the Trial Court did not err in recomputing Estepp’s

monthly restitution payments.

II. Standard of Review

We review the Trial Court’s Order voiding Estepp’s pretrial diversion

agreement for abuse of discretion. Commonwealth v. Andrews, 448 S.W.3d 773,

780 (Ky. 2014) (citing Commonwealth v. Lopez, 292 S.W.3d 878 (Ky. 2009)); see

also Compise v. Commonwealth, 597 S.W.3d 175, 180 (Ky. App. 2020). An abuse

of discretion occurs where “the trial judge’s decision was arbitrary, unreasonable,

unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993

S.W.2d 941, 945 (Ky. 1999). As we discuss infra, we must review whether the

Trial Court’s exercise of its discretion is consistent with the statutory criteria

required for the revocation of probation, which are the same prerequisites for a

decision to void a defendant’s felony diversion. Helms v. Commonwealth, 475

S.W.3d. 637, 644 (Ky. App. 2015) (citing Andrews, 448 S.W.3d at 780)

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(“Although a trial court’s discretion to manage probation is not ‘upended,’ that

discretion must be ‘exercised consistent with statutory criteria.’”).

III. Analysis

In Helms v. Commonwealth, we explained that “[p]retrial felony

diversion is a unique opportunity for a qualified defendant to enter a guilty plea or

an Alford[2] plea to a qualified felony charge, yet, upon successful completion of

the pretrial diversion period, not ‘be branded with a felony conviction[.]’” 475

S.W.3d at 641 (quoting Tucker v. Commonwealth, 295 S.W.3d 455, 457 (Ky. App.

2009)). Pursuant to KRS 533.258(1), “[i]f the defendant successfully completes

the provisions of the pretrial diversion agreement, the charges against the

defendant shall be listed as ‘dismissed-diverted’ and shall not constitute a criminal

conviction.” Id. Conversely, if a defendant fails to follow the provisions of the

agreement or complete the provisions within the time specified, a Trial Court may

void the diversion part of the agreement, and the Commonwealth “shall decide

whether or not to proceed on the plea of guilty in accordance with the law.” KRS

533.256(4).

The Kentucky General Assembly and this Court have made it clear

that the decision “[w]hether to void a pretrial diversion agreement for a violation of

its terms is to be determined by ‘the same criteria as for the revocation of

2
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

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probation, and the defendant shall have the same rights as he or she would if

probation revocation was sought.’” Helms, 475 S.W.3d at 641 (quoting KRS

533.256(2)). “Therefore, while distinguishable in significant ways from probation,

the statutes and regulations applicable to revocation of probation and for voiding a

pretrial diversion agreement are the same.” Id. “[T]he statutory law regarding

probation and other forms of supervised release provided” under KRS 439.310 et

seq. applies to felony diversion. Id. at 641-42. Thus, while a Trial Court retains

the discretion to determine whether to void a defendant’s felony diversion, it is

necessarily constrained by statute.

Specifically, KRS 439.3106(1)(a) sets forth the criteria that a Trial

Court must consider when evaluating whether to revoke an individual’s supervised

release. We have explained those criteria thusly, “to wit, (1) the supervised

individual’s incompliant behavior demonstrates that the individual is a significant

risk to prior victims or the community, and (2) the individual cannot be managed

within the community.” Nantz v. Commonwealth, 728 S.W.3d 804, 811 (Ky. App.

2026). A Trial Court must make both findings before pretrial diversion may be

voided. Compise, 597 S.W.3d at 180 (citing Burnett v. Commonwealth, 538

S.W.3d 322, 324-25 (Ky. App. 2017)). “These findings can be either oral or

written to satisfy both KRS 439.3106(1) and the defendant’s due process rights.”

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

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Here, there is no doubt that Estepp violated the conditions of his

pretrial diversion agreement in numerous, significant, and troubling ways. He did

not meet his obligation to pay restitution, even after the Trial Court gave him a

second chance and despite his prior acknowledgements of his ability and duty to

pay. Even more concerning, Estepp knowingly and surreptitiously left the area of

his supervision. He did not merely visit another jurisdiction; he commenced living

at another residence in another state. All of this misconduct is even more

alarming, given that he had twice been denied an ICOTS transfer. Thus, he knew

by multiple notices from different entities that he was to remain in Kentucky and

be supervised here. He decided to forgo these mandates. He stipulated to the

violations reported by P&P and, even on appeal, does not contest the evidence on

which the Trial Court relied in making the decision to terminate his pretrial

diversion. And this evidence of serial, serious noncompliance can be sufficient to

demonstrate that he is a significant risk to, and unmanageable within, the

community. Had the Trial Court used the requisite language, we might well be

affirming the decision here.

However, the Trial Court failed to make such findings. At his first

termination hearing ten months after entering felony diversion, the Trial Court

issued findings that, despite his failure to make progress toward paying his

restitution, he was “not a threat” and “still manageable in the community.” VR,

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2024-02-27, 17:10; TR, p. 53. However, at the hearing in August 2024, the Trial

Court did not communicate the necessary statutory findings as we have directed in

previous cases. Indeed, the Trial Court expressly stated that it was not sure that

Estepp posed a danger. But then it proceeded to describe Estepp’s misbehavior,

which could clearly constitute a danger.

In Compise, we reviewed a case with factual and procedural histories

very similar to the one sub judice. 597 S.W.3d at 175-79. Compise received

felony diversion after entering an Alford plea to receiving stolen property. Id.

After failing to pay restitution and committing other violations, the Circuit Court

voided the diversion from her felony agreement. Id. at 179. We held that the

Court erred by failing to make explicit findings that Compise was a significant risk

or danger and could not be managed in the community. Id. at 182-83. While the

lower Court there may have intended to reach those conclusions, it never

articulated them and, thus, we had no choice but to vacate and remand. Id.

Similarly, we have held that a Circuit Court erred by neglecting to make a finding

on one but not the other statutory prerequisite. Burnett, 538 S.W.3d at 324-25

(court erred by not making finding that defendant was a significant risk to the

community before voiding pretrial diversion).

The Trial Court’s comments at the hearing on August 27, 2024,

indicated uncertainty about whether Estepp’s failure to follow the rules and his

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dishonesty concerning his residence made him a danger to the community. As in

Compise, while the Trial Court may have intended to make a finding that Estepp’s

conduct made him a significant risk to the community – and that appears to be the

case here – it never sufficiently articulated such a finding, and it never

memorialized it in its written Order. Similarly, the Trial Court communicated that

felony diversion was not appropriate but did not find that Estepp was not

manageable within the community.

To be sure, there was ample evidence before the Trial Court to

support conclusions that the conditions of felony diversion alone were not enough

to supervise Estepp within the community, and that a sentence of incarceration was

necessary to make him comply with those conditions. We neither overlook nor

condone Estepp’s cavalier attitude towards complying with conditions with which

he does not agree. The requirement of living in the Commonwealth and submitting

to supervision here is the most basic component of diversion. Following orders is

another. Estepp did neither; despite being told and warned repeatedly to remain in

the jurisdiction, he simply and steadfastly refused.

But the Trial Court articulated no such contemporaneous finding and,

once again, did not memorialize in its final written Order any finding that Estepp

was unmanageable within the community under felony diversion – even though it

could have based upon the evidence before it. The crime itself here – stealing 120

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doses of narcotics from a pharmacy – posed a danger to the community at large. In

hindsight, diversion was questionable at the outset. And the Trial Court initially

expressed reticence. Estepp showed his unmanageability early and often due to his

obstinate refusal to submit to supervision in Kentucky. We acknowledge that it is

somewhat obvious that Estepp posed a danger and was unmanageable on his own.

The Trial Court could have even decided to send Estepp to prison instead of giving

him another chance at supervision while on probation versus diversion.

However, to do so, the Trial Court was required to making the

corresponding findings. And we are bound by legal precedent, just as the Trial

Court is. Every case interpreting the statute has said Trial Courts must use the

required terminology. Simply put, the Trial Court must have explicitly said that

Estepp posed a significant risk or danger to the community and that he was

unmanageable in the community. Here, the Trial Court did not use the mandated

terminology. While not magic words, all case law holds that the language is

requisite. Here, no matter how justified the Trial Court’s conclusion could have

been, it was not explained. In the face of such silence at the trial level, the

Appellate Courts cannot supply rationales, no matter how evident such reasoning

appears, as we operate with the benefit of hindsight, and the Trial Court does not.

In Compise and Burnett, we clearly established that a Trial Court must

explicitly and unequivocally communicate the prerequisites set forth in KRS

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439.3106(1)(a) prior to voiding a criminal defendant’s felony diversion. In this

instance, the Trial Court abused its discretion when it failed to do so. Therefore,

we vacate and remand for the Trial Court to consider whether Estepp’s failure to

abide by the conditions of his pretrial diversion agreement constituted a significant

risk to his prior victim or the community at large and whether he could be managed

in the community, before deciding anew whether his felony diversion should be

voided. The Trial Court is free to stand by its prior conclusions; we are not

compelling the result here. However, the Trial Court, and not this Court, must

state with specificity the statutory factors for removal from diversion and

sentencing. The Trial Court retains the discretion to determine whether it desires

another hearing. We are not ordering another hearing. The Trial Court may decide

the matter solely on the evidence that it has already heard as of the close of the

hearing at issue. However, if it does conduct another hearing, an inquiry into the

exact nature of Estepp’s employment as a firearms instructor would be warranted.

Even defendants on diversion who have pleaded guilty to a felony are prohibited

from possessing a firearm directly or indirectly. Clearly, Estepp is not allowed to

be on, or proximate to, a shooting range, weaponry, or ammunition.

Having vacated the Trial Court’s Order, there is no need to consider

Estepp’s unpreserved claim – to which he did not object before the Trial Court or

request a hearing – regarding the amount of his monthly restitution payments. On

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remand, the Trial Court may again consider the manner by which to address

Estepp’s failure to make progress on his agreement to pay restitution, including

making any inquiries regarding his financial status, and Estepp is free to make and

preserve any objection.

IV. Conclusion

For the foregoing reasons, the Campbell Circuit Court’s Order is

vacated and remanded for further proceedings. While not required to conduct

another hearing, or even to change its conclusion, the Trial Court is compelled to

make the requisite findings to support its decision.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Sarah Dickerson Dailey Russell Coleman
Substitution by: Attorney General of Kentucky
Erin Hoffman Yang
Department of Public Advocacy Ken W. Riggs
Frankfort, Kentucky Assistant Attorney General
Frankfort, Kentucky

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