Opinion
No. 108,770.
2013-06-7
STATE of Kansas, Appellee, v. Mitchell Douglas CAVALLARO, Appellant.
Appeal from Saline District Court; Rene S. Young, Judge. Mitchell B. Chistians, of Salina, for appellant. Amy E. Norton, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Saline District Court; Rene S. Young, Judge.
Mitchell B. Chistians, of Salina, for appellant. Amy E. Norton, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON, J., and JAMES L. BURGESS, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Mitchell Cavallaro appeals from the revocation of his probation, arguing that the district court improperly revoked his probation based on a violation not alleged in the State's motion to revoke. We affirm.
In February 2011, Mitchell Cavallaro pled no contest to and was found guilty of one count of domestic battery and one count of assault. The district court sentenced him to 12 months' probation to begin after 48 hours in jail, with underlying jail sentences of 6 months for the domestic battery and 30 days for the assault, to run consecutively. In April 2011, Cavallaro's probation officer filed a report alleging that Cavallaro violated the conditions of his probation by consuming alcohol. The State moved to revoke Cavallaro's probation and, at a hearing on the motion, Cavallaro stipulated to the violation. The district court found Cavallaro had violated his probation and revoked and reinstated the probation, extending the probation 12 months from the date of the hearing. As an additional condition of probation, the district court ordered that Cavallaro remain incarcerated until inpatient treatment was available.
In September 2011, the State filed a second motion to revoke Cavallaro's probation. Cavallaro's probation officer also filed a report asserting that Cavallaro had violated his probation by failing to obtain an alcohol and drug evaluation and successfully complete inpatient treatment. The district court held a hearing on September 20, 2011, at which Cavallaro again stipulated to violating his probation and the district court again revoked and reinstated his probation.
In November 2011, the State filed a third motion to revoke probation. As grounds for revocation, the motion stated only that Cavallaro “failed to: 1. Comply with the guidance and counsel of the Court Services Officer in fulfilling the conditions of this order.” Cavallaro's probation officer filed a report stating that after Cavallaro's probation was reinstated in September 2011, Cavallaro was transported to Montgomery County, Kansas, to attend a probation violation hearing there, after which he was remanded to serve his sentence in that matter. Cavallaro's probation officer further stated that Cavallaro's discharge date in Montgomery County was August 22, 2012.
The district court held a hearing on the State's motion on September 5, 2012. At the hearing, the State clarified that the alleged violation was failure to report and Cavallaro's probation officer testified that Cavallaro never reported to him after September 20, 2011. The district court found Cavallaro had violated his probation by failing to report and revoked and reinstated his probation for 1 year. Cavallaro timely appeals.
In his sole issue on appeal, Cavallaro argues that when the State named failure to “[c]omply with the guidance and counsel” of his probation officer as the only alleged violation in its motion to revoke, the State elected it as the ground for revocation and the district court could not revoke his probation based upon a different violation. Cavallaro contends that there was no evidence that he failed to abide by the guidance and counsel of his probation officer and, therefore, the district court improperly revoked his probation. The State disagrees, arguing first that it is not statutorily limited from presenting evidence at a probation revocation hearing of violations not listed in a motion to revoke. Moreover, the State notes that Cavallaro did not contemporaneously object to the introduction of the evidence that he violated his probation by failing to report as required. Finally, the State contends that it proved a violation—failure to report—by a preponderance of the evidence and therefore the district court did not err in finding that Cavallaro violated his probation.
The parties do not present a clear, agreed-upon standard of review. Although he does not word it in this way, Cavallaro's argument involving the district court's authority to revoke his probation based on a violation not alleged in the State's motion to revoke appears to be a question of jurisdiction. Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012). To the extent that Cavallaro is arguing that the State failed to meet its burden of proof in showing that he violated his probation, our Supreme Court has stated: “To sustain an order revoking probation on the ground that a probationer has committed a violation of the conditions of probation, commission of the violation must be established by a preponderance of the evidence. [Citation omitted.]” See State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006).
Once the State proves a probation violation by a preponderance of the evidence, the decision to revoke probation is within the district court's sound discretion. See State v. Ottinger, 46 Kan.App.2d 647, 654, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (2012). Cavallaro notes specifically that a district court has no discretion to revoke probation until evidence establishes a violation of a probation condition. While true, this rule is inapplicable here because the State did establish a violation of a probation condition in the instant case: Cavallaro was required to report to his probation officer and, according to the officer's uncontroverted testimony, Cavallaro failed to do so from September 20, 2011, forward.
As stated above, Cavallaro argues that the district court could only properly revoke his probation based on the violation alleged in the motion to revoke—that he failed to comply with the guidance and counsel of his court services officer. Cavallaro also asserted this point to the district court; when the district judge asked Cavallaro's attorney about other probation violations, counsel argued that the only basis on which the court could find a probation violation was on his failure to comply with the guidance and counsel of his probation officer. Cavallaro, however, fails to provide any legal authority supporting his contention that the district court is so limited by the State's motion. Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority is akin to failing to brief the issue, and an issue not briefed by the appellant is deemed waived and abandoned. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011); State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010).
Moreover, Cavallaro's proposed limitation seems contradictory to the broad discretion allowed a district court in determining whether to revoke probation. K.S.A.2012 Supp. 22–3716, which governs the procedure for probation revocation, states:
(a) At any time during probation, ... the court may issue a warrant for the arrest of a defendant for violation of any of the conditions of release or assignment, a notice to appear to answer to a charge of violation or a violation of the defendant's nonprison sanction.... After making an arrest, the court services officer or community correctional services officer shall present to the detaining authorities a similar statement of the circumstances of violation....
“(b) Upon arrest and detention pursuant to subsection (a), the court services officer or community correctional services officer shall immediately notify the court and shall submit in writing a report showing in what manner the defendant has violated the conditions of release or assignment or a nonprison sanction. Thereupon, or upon an arrest by warrant ..., the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charged. The hearing shall be in open court and the state shall have the burden of establishing the violation.... The defendant shall have the right to present the testimony of witnesses and other evidence on the defendant's behalf. Relevant written statements made under oath may be admitted and considered by the court along with other evidence presented at the hearing. Except as otherwise provided, if the violation is established, the court may continue or revoke the probation....”
Although this statutory section includes evidentiary rules, there is no prohibition on evidence related to violations not alleged in a motion to revoke. In addition, Kansas appellate courts have long held that probation is an act of grace and is a privilege, not a right. See, e.g., State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006); State v. DeCourcy, 224 Kan. 278, 280, 580 P.2d 86 (1978). Once the State proves a probation violation by a preponderance of the evidence, the decision to revoke probation is within the district court's sound discretion. See, e.g., Ottinger, 46 Kan.App.2d at 654;State v. Carter, 5 Kan.App.2d 201, 206, 614 P.2d 1007 (1980). As stated above, Cavallaro does not provide, nor has independent research discovered, legal authority that restricts the violation on which probation is revoked to one specifically enumerated in the motion to revoke.
Although Kansas appellate courts do not appear to have directly addressed the question at issue here, an unpublished opinion by the Court of Appeals further undermines Cavallaro's contentions. See State v. Brown, No. 102,823, 2010 WL 1253753 (Kan.App.2010) (unpublished opinion). In Brown, a panel of this court affirmed on other grounds a district court's revocation of probation where the motion to revoke probation alleged violations of three terms of probation, but the district court revoked probation because of a violation of a different condition altogether. 2010 WL 1253753, at *l–2. Despite a lack of analysis of the fact that the violation for which the district court revoked probation differed from the violations alleged prior to the hearing, Brown supports the contention that this is not error.
In a not dissimilar situation, this court affirmed the revocation of a defendant's probation for failure to report due to the fact he had been deported. The court found that there is no authority that requires it be proven that a defendant willfully violated his terms of probation and that his inability to comply with the terms of his probation due to his deportation was a direct result of his actions over which he was solely responsible. See State v. Portillo, No. 91,245, 2004 WL 2085734 (Kan.App.2004) (unpublished opinion). In this case it was clearly established that Cavallaro failed to report on probation due to his incarceration which incarceration was the result of his actions.
Finally, arguably, the State did prove that Cavallaro failed to abide by the guidance and counsel of his probation officer; it follows that Cavallaro could not have complied with the officer's guidance and counsel if he did not report to his probation officer as directed. For all the reasons above, this court affirms the district court's revocation of Cavallaro's probation.
Affirmed.