Opinion
111,029 111,030.
02-13-2015
STATE of Kansas, Appellee, v. Katherine L. CARPENTER, Appellant.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.
Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., GREEN, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Katherine L. Carpenter appeals the district court's decision, upon revocation of her probation, to bypass any additional intermediate sanctions provided for in K.S.A.2013 Supp. 22–3716(c)(1) and remand her to prison to serve her underlying sentence. The district court held that, under K.S.A.2013 Supp. 22–3716(c)(9), Carpenter's welfare would not be served by further intermediate sanctions and that, under K.S.A.2013 Supp. 22–3716(c)(8), Carpenter had absconded from supervision. We find no merit in Carpenter's challenges and affirm the district court.
Factual and Procedural Background
On October 25, 2012, the district court convicted Carpenter in case No. 12CR1854 of one count of criminal threat, a severity level 9 person felony, based on her no contest plea. Then, on January 3, 2013, the district court convicted Carpenter in case No. 12CR2517 of another separate count of felony criminal threat based on her no contest plea. The cases were consolidated for sentencing. On January 11, 2013, in 12CR1854, the district court sentenced Carpenter to an underlying term of 6 months in prison but placed her on probation for 12 months. In 12CR2517, the district court sentenced Carpenter to 12 months in prison but again granted probation for 12 months. The district court imposed the latter sentence to run consecutive to the former, so Carpenter's controlling underlying sentence was 18 months.
On May 22, 2013, the district court heard the State's first motion to revoke probation. Carpenter stipulated to violating the terms of her probation in both cases. She admitted that she had failed to remain law abiding and to remain alcohol free. The State's evidence demonstrated that Carpenter had been arrested and newly charged with criminal threat, criminal damage to property, and disorderly conduct and that she was intoxicated at the time of her arrest. The district court revoked and reinstated Carpenter's probation in both cases, transferred supervision to Community Corrections, and extended probation for an additional 12 months.
On August 15, 2013, the district court heard the State's second motion to revoke probation. Carpenter stipulated to the violations alleged in each case. She admitted that she had failed to report, to provide her supervising officer her address, and to follow the supervising officer's directions to check into Topeka Rescue Mission if she did not otherwise have a residence. These continuing violations began before but continued after July 1, 2013, the effective date of K.S.A.2013 Supp. 22–3716. The district court applied the newly effective amended provisions of K.S.A.2013 Supp. 22–3716(c)(1)(B). It revoked probation, imposed a “quick dip” intermediate sanction of 6 total days in jail (3 days under each case), and then ordered that, upon Carpenter's release, probation to Community Corrections would be reinstated.
On November 13, 2013, just 10 months after sentencing, the district court heard the State's third motion to revoke probation. Carpenter stipulated to the violations of her probation that the State alleged. Her failure to report the violation was especially egregious. Carpenter had failed to report since September 5, 2013. Her supervising officer coincidentally encountered her at a gas station on September 26, 2013. When the officer inquired about her slurred speech, Carpenter admitted she had been drinking. She told the officer that she was living under a bridge. The officer directed her to either accompany him back to his office right then or come in the next day at 10 a.m. Carpenter did neither, nor did she report thereafter. The record indicates that Carpenter was arrested on her probation violation warrant October 13, 2013.
Carpenter also stipulated that she had failed to provide her supervising officer an address, to follow officer directions to check into the Topeka Rescue Mission, and to remain alcohol free.
The State asked the district court to bypass any further intermediate sanctions “by either making a finding that the defendant has absconded from probation or that ... the intermediate sanction will not serve the welfare of the defendant.” After recounting the prior revocation hearing history noted above, the State argued the following:
“The same thing has happened here. Mr. Schuetz [the supervising probation officer], until the defendant was arrested and taken into custody, had no opportunity to have any contact with the defendant, did not know where she was, did not know what she was doing. And in this particular instance, the only in-person contact as alleged in the affidavit, that Mr. Schuetz had with the defendant, was a chance encounter at a gas station in which she was given specific instructions to either go with him to the ISO office or report the next day, in which case the defendant did neither.
“In addition, Your Honor, the offense dates of these two felony cases were not at the [same] time. One happened before another. I believe this, at the time of sentencing, triggered a special rule for the defendant committing an offense while on felony bond. She was given an opportunity to have probation. The defendant subsequently was charged in an additional felony case, 13–CR–655. The State reached an agreement to continue her probation and pled her to misdemeanors in that case, but she certainly has failed to remain law-abiding. And looking at the defendant's past behavior, I think it's reasonable to say that we can't really expect that either an intermediate sanction or continuation of probation is going to have any rehabilitative effect on her character at this point. For those reasons, Your Honor, I believe that the underlying sentences should be imposed.”
Carpenter's counsel argued that the intermediate sanctions in K.S .A.2013 Supp. 22–3716(c) were enacted specifically for people like Carpenter. Counsel asked that the district court impose either the 120 day [K.S.A.2013 Supp. 22–3716(c)(1)(C) ] or the 180 day [K.S.A.2013 Supp. 22–3716(c)(1)(D) ] intermediate sanction of imprisonment, under the custody of the secretary of corrections, followed by probation reinstatement.
After considering the parties' arguments, the district court revoked Carpenter's probation and ordered that she serve the remainder of her underlying 18–month prison sentence. The district court observed that during the span of her probation this was not the first time Carpenter had been before the court on probation violations. On two prior occasions, she had stipulated to essentially the same violations as were at issue at the current hearing. Additionally, the district judge stated:
“Efforts have been expended to assist her in addressing her residence, alcoholism, and there has been a continuation of alcoholism combined with behaviors that tend toward violence.
“The Court presently notes that she has not reported as required. She-her supervisor, by chance, met her at a filling station and then she did not even report the next day. She has absconded and I do not find that the welfare of the defendant can be served by further efforts on probation. The defendant is not subject to reporting frequently and she has absconded from her supervision, not just this time but on previous occasions. For all those reasons, the Court is going to revoke probation and order that she serve her underlying sentence in the custody of the Department of Corrections.” (Emphasis added.)
Carpenter timely filed a notice of appeal in each case, and we consolidated the cases for appeal.
Analysis
As a threshold matter the State submits that Carpenter's appeal is moot because she has already served her sentences. The State duly filed its notice of change in custodial status under Kansas Supreme Court Rule 2.042 (2014 Kan. Ct. R. Annot. 18). This court issued a show cause order concerning dismissal of the appeal for mootness. After considering responses to the show cause order, the motions panel of this court decided to retain this appeal. We agree with that decision. We therefore deny the State's request that we dismiss Carpenter's appeal as moot.
On appeal, Carpenter acknowledges that she stipulated to violating the conditions of her probation for a third time. She also agrees that the district court can bypass the intermediate sanctions in K.S.A.2013 Supp. 22–3716(c)(1) if the defendant has absconded from supervision or if the court finds that the welfare of the offender will not be served by an intermediate sanction. K.S.A.2013 Supp. 22–3716(c)(8) and (9). She states her actual issue on appeal in the following: “Because the state did not prove by a preponderance of the evidence that Ms. Carpenter had either (1) absconded or (2) that Ms. Carpenter's welfare would not be served by an intermediate sanction, the district court erred in not imposing an intermediate sanction under K.S.A.2013 Supp. 22–3716(c).”
Probation from a sentence is an act of grace by the sentencing judge and, unless otherwise required by law, the sentencing judge grants it as a privilege, not as a matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Here, it appears that probation was granted as a privilege because Carpenter committed her second offense while on bond, which eliminated any presumption of probation. Once the State has proven a violation of the conditions of probation, the decision to revoke probation is within the sound discretion of the district court. State v. Skolaut, 286 Kan. 219, 227–28, 182 P.3d 1231 (2008) ; State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). A judicial action constitutes an abuse of discretion if (1) no reasonable person would have taken the view adopted by the trial court; (2) it is based on an error of law; or (3) it is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
The parties acknowledge that K.S.A.2013 Supp. 22–3716 was in effect at the time of Carpenter's violations. It therefore governed the sanctions that the district court could impose upon a finding that Carpenter violated her probation. The statute provides that a sentencing court should generally give a probation violator one of the various graduated intermediate sanctions it lists before ordering that the probationer serve the underlying prison sentence. K.S.A.2013 Supp. 22–3716(c)(l) sets out those sanctions in its several subsections.
However, the district court is not always required to impose an intermediate sanction before remanding a probationer to prison. The district court can revoke probation without previously imposing one of the graduated sanctions found under K.S.A.2013 Supp. 22–3716(c) if the district court “finds and sets forth with particularity the reasons for finding that ... the welfare of the offender will not be served by such sanction.” K.S.A.2013 Supp. 22–3716(c)(9). Similarly, the district court can bypass intermediate sanctions if it finds that the offender has absconded from supervision. K.S.A.2013 Supp. 22–3716(c)(8).
As noted above, the State must prove, by a preponderance of the evidence, that Carpenter committed a violation of the conditions of her probation. See State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). Carpenter does not challenge the finding that she violated her probation. She stipulated to her violations. Once a violation of probation has been found, though, the resulting disposition is within the district court's sound discretion. 281 Kan. at 1170. We find that the abuse of discretion standard still applies to disposition decisions under K.S.A.2013 Supp. 22–3716(c)(8) or (9). The burden of demonstrating an abuse of discretion is on the party alleging the abuse. State v. Burnett, 300 Kan. 419, 449, 329 P.3d 1169 (2014).
What Carpenter appears to argue is that the district court abused its discretion by basing its decisions to remand Carpenter to prison on errors of fact. The court commits an error of fact when “substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).
We first consider the court's finding that Carpenter's welfare would not be served by additional intermediate sanctions. Under the specific directive in K.S.A.2013 Supp. 22–3716(c)(9), we must determine whether the district court set forth with particularity the reasons for that finding. Then we determine whether substantial competent evidence supports the district court's reasons, i.e., the factual findings, on which it based its discretionary decision to remand Carpenter to prison.
In making this decision, the district court noted that Carpenter had just stipulated to essentially the same probation violations for the third time during the term of her probation. While Carpenter was on probation her supervising officers had expended efforts to deal with her alcoholism, but she continued to drink and engage in actions that tended toward violence. Likewise, she resisted her supervising officers' efforts to help her obtain a stable residence. She persistently failed to report to her supervising officers. Even when she had the chance encounter with her supervising officer at the gas station she did not report. Carpenter stipulated to all these facts as set out in the motion to revoke. This is all substantial competent evidence that supports the district court's finding that Carpenter's welfare would not be served by imposing further intermediate sanctions rather than her original prison sentence.
It is also worth noting that during her short period of probation Carpenter had already completed a session of inpatient treatment, she received one intermediate sanction under K.S.A.2013 Supp. 22–3716(c)(l)(B), she had one previous probation revocation under the prior version of the statute, and she had been convicted in May 2013, under case No. 13CR655, of misdemeanor assault plea bargained down from yet another charge of criminal threat.
The district court set forth its findings with adequate particularity under K.S.A.2013 Supp. 22–3716(c)(9). Its findings support its decision that further intermediate sanctions would not serve Carpenter's welfare. She had not availed herself of the services her supervising officers attempted to provide that could have improved her conditions and kept her out of custody. She failed to demonstrate that any community sanction would change her behavior. The decision is also supported by substantial competent evidence in the record. The district court did not err in bypassing additional intermediate sanctions and ordering that Carpenter serve her underlying prison sentence.
The district court also found that Carpenter had absconded from her probation supervision based on her persistent failure to report. Again, K.S.A.2013 Supp. 22–3716(c)(8) provides that the district court can bypass intermediate sanctions if “the offender ... absconds from supervision....” We disagree with Carpenter's assertion that the State was required to show that she was hiding from her supervising officers. She clearly avoided contact with them. She had a duty to report to them but never fulfilled that duty from early September 2013 until her October 2013 arrest, even after her chance encounter with her supervising officer at the gas station. Carpenter does not explain how such an egregious avoidance of supervision is not tantamount to absconding from supervision. The district court's decision that Carpenter absconded from supervision was not arbitrary, fanciful, or unreasonable. It was not based on an error of fact or law, and it was properly supported by substantial competent evidence.
We note that the district court, at the August 15, 2013, revocation hearing had previously imposed on Carpenter an intermediate sanction under K.S.A.2013 Supp. 22–3716(c)(1)(B) (the “quick dip” jail time). Both K.S.A.2013 Supp. 22–3716(c)(8) and (9) contain language to the effect that “the court may revoke the probation ... of an offender pursuant to subsection (c)(1)(E) without having previously imposed a sanction pursuant to subsection (c)(1)(B), (c)(1)(C) or (c)(1)(D)” if the probationer has absconded from supervision or the probationer's welfare would not be served by an intermediate sanction. We have ruled on the issues that the parties have raised. We make no determination on whether, in light of the intermediate sanction previously imposed under “subsection (c)(1)(B),” the district court was required to make the findings it did in order to remand Carpenter to prison to serve her underlying sentence.
We, therefore, affirm the district court's decision revoking Carpenter' probation and imposing her original sentence.
Affirmed.