Opinion
112,203.
08-14-2015
STATE of Kansas, Appellee, v. Shaun BROWN, Appellant.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant. Amy E. Norton, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.
Amy E. Norton, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., LEBEN, J., and HEBERT, S.J.
Opinion
PER CURIAM.
Shaun Brown appeals the revocation of his felony probation. He contends the district court was limited to imposing an intermediate sanction in his case because it failed to find that the public's safety or Brown's welfare would be jeopardized if he was not imprisoned. He also argues that the district court erred by finding he had absconded. Because the district court properly found that Brown's welfare would not be served by imposing another sanction, we affirm.
In July 2011, the State charged Brown with one count each of domestic battery, aggravated burglary, criminal threat, criminal damage to property, obstructing official duty, battery on a law enforcement officer, criminal restraint, and violation of a protection order. On September 22, 2011, Brown pled guilty to one count of aggravated burglary. In exchange for Brown's plea, the State dismissed the remaining charges. About 1 month later, the district court granted a dispositional departure and sentenced Brown to serve 36 months' probation and imposed an underlying prison sentence of 41 months' imprisonment. Among the several terms of Brown's probation, he was required to report in person to his probation officer; inform the probation officer of his location, address, and phone number; complete anger management and batterers' intervention programs; refrain from contact with the victim; and complete 50 hours of community service.
On February 17, 2012, the State filed a motion to revoke Brown's probation. The district court conducted a hearing on the motion on March 12, 2012, during which Brown and his probation officer testified. Ultimately, the district court found that Brown had materially violated the terms of his probation by contacting the victim, failing to report as directed to his probation officer, failing to report that he had been arrested, and failing to keep his probation officer advised of his address, phone number, and location. The district court revoked, reinstated, and extended Brown's probation by 36 months pending the completion of a 60–day jail sanction. It also warned Brown that if he were to violate his probation again that it would require him to serve his underlying prison sentence.
On May 1, 2014, the State again filed a motion to revoke Brown's probation, stating that he had failed to report to his probation officer as directed, failed to complete his community service work hours, and failed to complete the anger management and batterers' intervention programs. Attached to the motion was an affidavit stating that Brown was required to meet with his probation officer twice each month and that he had missed both meetings in December 2013 and January 2014. It also provided that Brown met with his probation officer once in February 2014 and once in March 2014 but did not appear for the other meetings.
At a probation revocation hearing held on June 17, 2014, Brown stipulated that he had failed to report and failed to complete his community service. In regards to the treatment programs, Brown asserted that he had completed an initial evaluation for the batterers' intervention program but the center that conducted the evaluation had not provided his probation officer with proof of such evaluation. He also asserted during the hearing that “there wasn't really a recommendation to go take classes.” Cindy Davis—Brown's correction officer—briefly testified that Brown had never submitted proof that he completed the batterers' intervention or anger management programs. She also stated that Brown contacted her about 1 month after the State had filed its second motion to revoke his probation and told her that he had completed an evaluation. However, Brown never provided her with any documentation.
Ultimately, the district court found that Brown materially violated the terms of his probation by failing to report and by failing to complete his community service, anger management program, and batterers' intervention program. In announcing his decision to revoke Brown's probation, the district judge said:
“The issue of whether to revoke probation now comes before the Court. This case has been proceeding for some time. He was placed on—his plea was in September of 2011. He was granted a dispositional departure in October of 2011. One of the bases for that departure was for the defendant to obtain evaluations and utilize programs available. It is not a new order of this Court, nor should it be a surprise to the defendant that the evaluation was required and that the Anger Management and Batter[ers'] Intervention Program[s] were to be completed. If the evaluation that the defendant claims he obtained indicated no further treatment, it would have behooved him to have turned that in to accommodate his sentencing orders, however he did not do that and he's been on supervision four years. And at some point he has to avail himself of that by appearing at appointments, communicating and undergoing the appropriate evaluation and treatment otherwise probation is not useful in this circumstance.
“The Court would also note that Judge Thompson clearly informed the defendant at his last hearing that that was his last chance. In fact I have before me his notes where he's highlighted in yellow, it says in caps, last chance. Now we come here today with the same allegations: ... The defendant is not amenable to probation. The Court finds that it is in his and this community's welfare for him to be revoked, remanded to serve his underlying sentence. The Court also finds that based on his lack of contact and missed appointments[ ] that he is an absconder and I am having him serve his underlying sentence with credit for time served.” (Emphasis added.)
The district court filed a journal entry on July 1, 2014, and Brown timely appealed.
The District Court Did Not Err in Revoking Brown's Probation.
Probation from service of a sentence is an act of grace by the sentencing judge and, unless otherwise required by law, is a privilege rather than a matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). A district court's decision to revoke probation usually involves two steps: (1) a retrospective factual question of whether the probationer has violated a condition of probation; and (2) a discretionary determination by the sentencing authority of whether the violation warrants revocation. State v. Skolaut, 286 Kan. 219, Syl. ¶ 4, 182 P.3d 1231 (2008).
Since the decision to revoke probation rests in the sound discretion of the district court, appellate courts generally review such a decision under the abuse of discretion standard. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). Abuse of discretion means that the decision was (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, 825, 295 P.3d 560 (2013). Brown carries the burden of showing an abuse of discretion. See State v. Stafford, 296 Kan. 25, 45, 290 P 3d 562 (2012). However, to the extent this court must interpret K.S.A.2013 Supp. 22–3716, we exercise unlimited review. See State v. Riojas, 288 Kan. 379, Syl. ¶ 7, 204 P.3d 578 (2009).
On appeal, Brown only challenges the district court's findings in regards to the treatment programs. In doing so, he makes two arguments. First, he claims that K.S.A.2013 Supp. 22–3716(c) mandated that the district court impose an intermediate sanction. Second, he asserts the district court erred by finding that he had absconded. We consider these matters in turn.
Failing to Impose an Intermediate Sanction
Prior to July 1, 2013, a district court had significant latitude to enter a variety of sanctions once it determined that a defendant had violated his or her terms of probation. See State v. McGill, 271 Kan. 150, 154, 22 P.3d 597 (2001). The district court could, among other alternatives, continue or revoke probation, assign a defendant to a community correctional services program, or suspend the defendant's sentence and require him or her to serve the original sentence under K.S.A.2012 Supp. 22–3716(b). Effective July 1, 2013, the Kansas Legislature amended 22–3716(c) to establish a detailed and specific system of graduated sanctions for dealing with felony probation violators, which allows the district court to send defendants to jail for brief periods instead of sending them to prison to serve their sentences. See K.S.A.2013 Supp. 22–3716(c)(1)(A)–(D) ; State v. McGill, 51 K an. App.2d 92, 94, 340 P.3d 515 (2015), petition for rev. filed February 9, 2015.
But the Legislature provided mechanisms to pass over these intermediate sanctions and impose the original sentence if the offender commits a new felony or “absconds from supervision while the offender is on probation.” K.S.A.2013 Supp. 22–3716(c)(8). The district court may also bypass intermediate sanctions if it “sets forth with particularity the reasons for finding that the safety of the members of the public will be jeopardized or that the welfare of the offender will not be served by such sanction.” K.S.A.2013 Supp. 22–3716(c)(4) and (c)(9). Since Brown's probation violations occurred after July 1, 2013, the 2013 amendments apply to him. See McGill, 51 Kan.App.2d at 95 ; c.f. K.S.A.2014 Supp. 22–3716(c)(12)
Brown argues that “the only evidence before the Court was that Mr. Brown did complete his evaluations,” which he evidently gathers from Davis' testimony about the call she received from Brown telling her that he had completed an initial evaluation. This is a mischaracterization of the evidence. Although Brown had over 2–½ years to complete his 50 hours of community service, batterers' intervention program, and anger management program, he was unable to produce a single document indicating that he had initiated any of these. Indeed, the vast majority of the evidence before the district court was that Brown had not begun to comply with the terms of his probation.
Brown complains about the district court's refusal to grant a continuance so that Davis could confirm with the treatment center that Brown had completed an evaluation. But doing so would have been meaningless. Even assuming that Brown had completed an initial evaluation, he did not allege that he had completed the batterers' intervention program, let alone the anger management program.
In finding that Brown “is not amenable to probation,” the district court set forth with particularity how Brown had failed to voluntarily take advantage of the treatment programs required by the probation granted in October 2011 and reiterated in February 2012, more than 2 years prior to the May 1, 2014, violations giving rise to this most recent revocation proceeding. The district court specifically found that it would therefore be in his Brown's and the community's welfare for his probation to be revoked without further intermediate sanctions. The district court's analysis and pronouncement clearly complies with the requirements of K.S.A.2013 Supp. 22–3716(c)(9). Brown has failed to establish any abuse of discretion and his probation was properly revoked.
Because we find that the court properly revoked Brown's probation pursuant to K.S.A.2013 Supp. 22–3716(c)(9), we need not consider or resolve Brown's arguments regarding the district court's alternative finding that Brown was also eligible for revocation as an absconder pursuant to K.S.A.2013 Supp. 22–3716(c)(8). We would, however, direct the parties' attention to the recent decision of this court in State v. Huckey, 51 Kan.App.2d 451, 453–58, 318 P.3d 997 (2015), petition for rev. filed May 22, 2015, which sets forth a thorough discussion of this issue.
Affirmed.