Opinion
11,1903.
06-05-2015
STATE of Kansas, Appellee, v. Russell Andrew ANHORN, Appellant.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Carol Longenecker Schmidt, 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 MALONE, C.J., ARNOLD–BURGER and GARDNER, JJ.
MEMORANDUM OPINION
PER CURIAM.
This appeal from a probation revocation challenges the trial court's finding that Russell A. Anhorn had absconded from supervision. After Anhorn pled guilty to one count of attempted possession of methamphetamine, he filed a motion for dispositional departure. The court granted his motion and sentenced him to 12 months' probation with an underlying sentence of 28 months in prison. The State later moved to revoke his probation, and the district court found Anhorn had violated the conditions of his probation and had absconded from supervision, so it revoked his probation. Anhorn contends that the State failed to prove by a preponderance of the evidence that he had absconded from supervision and that the court should have imposed an intermediate sanction. Finding no error, we affirm.
The terms and conditions of Anhorn's probation required, among other matters, that he report to his probation officer at least three times per month, remain drug and alcohol free, and remain law abiding. Approximately 8 months after Anhorn's sentencing, the State filed a show cause motion to revoke Anhorn's probation, alleging the following violations:
• failure to report, as Anhorn had not reported since October 16, 2013;
• failure to remain drug and alcohol free, as Anhorn admitted to his probation officer he had used drugs on June 12, July 3, August 7, and September 18, 2013; and
• failure to remain law abiding, as Anhorn had violated a restraining order.
A warrant issued soon thereafter, and Anhorn was arrested in Nebraska on December 17, 2013.
At the probation revocation hearing, Anhorn's probation officer, Joel Manzanares, testified that Anhorn had admitted to using drugs on four occasions: June 12, July 3, August 7, and September 18, 2013. He stated that Anhorn was generally compliant in reporting from April until October 16, 2014, but not thereafter. After Anhorn stopped reporting, Manzanares tried to locate him at the Topeka Rescue Mission at least three times between October 17 and December 12, 2013. Manzanares found Anhorn once, on October 24, 2013, but had no contact with him after that date. Although Anhorn had showed up at Manzanares' office on November 5 and 14, 2013, Manzanares was not there either time. On some unspecified date thereafter, Anhorn went to Nebraska without informing his probation officer. Manzanares did not know that Anhorn was in Nebraska until Anhorn was arrested there in December of 2013.
Based on Anhorn's failure to report between November 14, 2013, and January 29, 2014, and his out-of-state arrest, the State argued that Anhorn had absconded from supervision. Anhorn's attorney disagreed, focusing on Anhorn's documented mental illness, the short amount of time Anhorn had failed to report, the lack of efforts made to find him, and the fact that no definition of “absconder” had been established.
The trial court found Anhorn had absconded, holding:
“[I]f the probation officer does not know where the defendant is and the defendant does not report, those are two facts in combination that have a strong indication that the defendant has absconded....
....
“... And the evidence simply indicates that under all of the facts it does appear and is established and held by the Court that [Anhorn] did abscond from supervision.”
The trial court also found Anhorn had violated the conditions of his probation by failing to remain drug free.
The trial court declined Anhorn's request for an intermediate sanction which would allow Anhorn to seek services for his mental disabilities, stating:
“I have concerns about [Anhorn's] amenability to probation and it appears that there have been multiple problems in the defendant's probation since ... October.
....
“And although consequences are important for not following through with probation, I think it's also important to note that ... prison is also a structured environment, it's a warm place to be, you have three meals a day provided to you, and there are people there who are obligated to guard Mr. Anhorn. They're obligated to do what they can to make him safe or to try to make sure that he's safe, and to see that he has appropriate medical care .”
The trial court revoked Anhorn's probation and sentenced him to the underlying sentence. Anhorn timely appealed.
We review the district court's factual finding that Anhorn had absconded to determine if that finding is supported by substantial competent evidence. Substantial competent evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. Gannon v. State, 298 Kan. 1107, 1175, 319 P.3d 1196 (2014). We then apply an abuse of discretion standard to review the district court's ultimate decision to revoke Anhorn's probation and order him to serve his underlying sentence. See State v. Raiburn, 289 Kan. 319, 332–33, 212 P.3d 1029 (2009) ; State v. Skolaut, 286 Kan. 219, 227–28, 182 P.3d 1231 (2008). Judicial discretion is abused if the action is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. Fischer v. State, 296 Kan. 808, Syl. ¶ 8, 295 P.3d 560 (2013). Anhorn bears the burden of showing such abuse of discretion. See State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).
Our analysis begins with the controlling statute. K.S.A.2013 Supp. 22–3716(c) requires a sentencing court to impose an intermediate sanction on a violating probationer before ordering the probationer to serve the underlying prison sentence, unless certain exceptions apply.
“But intermediate sanctions are not required if the probationer commits a new crime, absconds from supervision, or the sentencing court finds and sets forth with particularity its reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the offender will not be served by such sanction. K.S.A.2014 Supp. 22–3716(c)(8) and (9).” State v. Huckey, 51 Kan.App.2d ––––, ––– P.3d ––––, 2015 WL 1874459, at *3 (No. 112,273 filed April 24, 2015).
To the extent that the resolution of this issue requires statutory interpretation, our review is unlimited. See State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
Although this statute does not define the phrase “absconds from supervision,” our court has previously interpreted “abscond” in this context as having the same definition as in Black's Law Dictionary: “To depart secretly or suddenly, esp[ecially] to avoid arrest, prosecution, or service of process.” Black's Law Dictionary 8 (10th ed.2014); see, e.g., Huckey, 2015 WL 1874459, at *3–4 (finding probationer who merely failed to report was not an “absconder”). State v. Campbell, No. 100,660, 2010 WL 198502, at *1 (Kan.App.2010) (unpublished opinion), (finding “absconder” and “fugitive” interchangeable for purposes of the fugitive disentitlement doctrine presented in that case); rev. denied 291 Kan. 914 (2011). We adopt the same definition of that phrase.
In Huckey, our court relied on this definition in finding that absconding from supervision within the meaning of the relevant Kansas statute requires something more than failing to report. Huckey, 2015 WL 1874459, at *5 ; see also State v. Hess, 180 Kan. 472, 475, 304 P.2d 474 (1956) (“ ‘Mere failure to appear at a particular term would not make the defendant a fugitive from justice, but only an absentee....’ ”). We agree.
The evidence here shows something more than Anhorn's mere failure to report. It is uncontested that Anhorn failed to report for a period of 3 months, that he left the state without telling his probation officer or providing a forwarding address, and that he was arrested in Nebraska. Although the record does not reflect Anhorn's motive for leaving Kansas, the definition of “abscond” we have adopted does not require the State to prove the absconder's subjective intent for departing. We find that a reasonable person might accept this evidence as sufficient to support the conclusion that Anhorn departed secretly and thus absconded from supervision.
We find no procedural error in the manner in which this evidence was presented. The district court held an evidentiary hearing at which the State was required to prove, and did prove, by a preponderance of the evidence that the probationer had absconded from supervision. See Raiburn, 289 Kan. at 331–33, 212 P.3d 1029 ; Huckey, 2015 WL 1874459, at *4 ; Campbell, 2010 WL 198502, at *2.
Nor do we find an abuse of discretion in the district court's refusal to impose an intermediate sanction which would allow Anhorn to seek services for his mental disabilities. The district court considered Anhorn's request and stated its reasons for revoking Anhorn's probation and sentencing him to the underlying sentence. Anhorn has not met his burden to show that the revocation was arbitrary, fanciful, or unreasonable, was based on an error of law, or was based on an error of fact.
Affirmed.