Opinion
No. 110,980.
2014-09-19
STATE of Kansas, Appellee, v. Rodney FAIRCHILD, Appellant.
Appeal from Reno District Court; Joseph L. McCarville III, judge.
Submitted for summary disposition pursuant to K.S.A.2013 Supp. 21–6820(g) and (h).
Before MALONE, P.J., LEBEN and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM:
Rodney Fairchild was convicted for aggravated failure to register as a sex offender. He received probation but violated several of his probation's conditions: he left the State without his probation officer's permission, and on three occasions he was around minor girls without the supervision of another adult. The judge revoked Fairchild's probation and ordered him to serve the underlying sentence for his conviction: 72 months in prison.
Fairchild appeals and argues that even though he admitted to violating his probation, his violations were technical and shouldn't have been the basis for imposing his full underlying sentence. But it's within the district court's discretion whether to revoke probation once a violation has been established. The district court did not abuse its discretion in revoking Fairchild's probation.
Factual and Procedural Background
In 2004, as a part of a sex-addiction therapy program, Fairchild self-reported to authorities that he had a pornography addiction. As a result, he was charged with and convicted of sexual exploitation of a child for possessing pornography of a juvenile. As part of his sentence, Fairchild was ordered to register as a sex offender in compliance with the Kansas Offender Registration Act. That required him to report every email or social-media account that he had access to.
In 2012, Fairchild was charged with aggravated failure to register as a sex offender under K.S.A.2011 Supp. 22–4903. The State alleged that he had access to an online identity—including Facebook and email accounts—that he hadn't reported. He was arrested on this charge in April 2012, after having been noncompliant with his registration for over 180 days.
Fairchild entered into a plea agreement with the State. He pled no contest to aggravated failure to register as a sex offender. In exchange, the State joined his motion requesting a dispositional departure for probation instead of a prison sentence. The State provided a factual basis for its charge: Fairchild had helped his father set up an email and a Facebook account and had agreed with his father that they would share the accounts because registered sex offenders are not allowed to have their own Facebook pages under the company's policies. The State didn't allege that Fairchild had used the accounts for anything other than contacting adult friends and family, but it noted that despite multiple opportunities to report his access to his father's accounts, Fairchild did not register them. The court accepted Fairchild's plea.
On July 20, 2012, the court sentenced Fairchild to 36 months of probation, with an underlying 72–month prison sentence. It noted that it was granting Fairchild a departure primarily because evidence showed that he was holding a steady job, working hard in his rehabilitation, attending sex-addiction therapy, and actively participating in his church. The court stated it was giving Fairchild a chance to correct one bad decision and that it didn't expect to see him again. In October 2012, as part of his probation, Fairchild signed a special—condition contract that prevented him from having unsupervised contact with minors younger than 16 without another adult present.
But in April 2013, Fairchild's probation officer alleged that Fairchild violated his probation by having unsupervised contact with girls under the age of 16 on three separate occasions. On April 26, 2013, the State moved to revoke Fairchild's probation for these violations and for a fourth one-leaving Kansas without his probation officer's permission.
At his probation-revocation hearing, Fairchild stipulated to violating his probation in all of the ways that the State alleged. The court accepted Fairchild's stipulation and found that he had violated his probation.
Fairchild told the court that he hadn't been in a secluded place with the minors and that the only reason he had had contact with them was because he was trying to be a leader in his church. Fairchild testified that he had told his probation officer that he was leaving Kansas on her voicemail and that he hadn't realized he needed to do more. Fairchild asked the court for a short prison sanction and a return to probation, but both community corrections staff and the prosecutor requested that the court revoke Fairchild's probation and impose his underlying sentence because the condition Fairchild violated—having unsupervised contact with minors—was a special condition of his probation that he had agreed to less than 6 months earlier.
The district court revoked Fairchild's probation and ordered him to serve his underlying sentence of 72 months. In doing so, the court explained that it was difficult to predict whether and when a sex offender would reoffend, which necessitates strict rules for sex offenders on probation. In light of the fact that Fairchild's first crime—sexual exploitation of a child—involved a minor, and in light of the fact that his current violations included actual contact with minors—the court concluded that Fairchild posed a potential risk. The judge also stated that he would have been more lenient if Fairchild hadn't already been before the court for a technical violation. The judge said that Fairchild knew how strict the rules for sex offenders were but continued to violate them.
Fairchild's Appeal
Fairchild argues that the district court abused its discretion by ordering him to serve 72 months in prison for what he terms “very technical” violations of his probation and of the law—failing to tell the sherriff that he was a joint user of his father's email and Facebook accounts and for being with minors without another adult present during church activities. He contends that because his violations were relatively minor and because neither of them were sexually motivated, a 72–month prison sanction was too harsh a penalty for his mistakes.
The legal rules applicable to this appeal are straightforward. A district court's decision to revoke probation must be based on a factual finding that a condition of probation has been violated. Once a violation has been established, the decision to revoke probation is within the discretion of the district court. State v.. Skolaut, 286 Kan. 219, 227–28, 182 P.3d 1231 (2008); see State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). Unless the district court has made a legal or factual error, we may find an abuse of discretion only when no reasonable person would agree with its decision. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012); State v. Gumfory, 281 Kan. 1168, Syl. ¶ 1, 135 P.3d 1191 (2006).
Under the facts of this case, a reasonable person could agree with the district court's decision to revoke Fairchild's probation. Fairchild correctly notes that no evidence indicated that his underlying crime (aggravated failure to register as a sex offender) or his most recent probation violations (including unsupervised contact with minors) were sexually motivated. But Fairchild knew what the rules for complying with his probation were, and he continued to disregard them. Given Fairchild's prior conviction for sexual exploitation of a child, the district court was reasonably concerned about Fairchild's unsupervised contact with minors, which had occurred more than one time.
On Fairchild's motion, we accepted this appeal for summary disposition under K.S.A.2013 Supp. 21–6820(g) and (h) and Supreme Court Rule 7.041A (2013 Kan. Ct. R, Annot. 63). We have reviewed the record that was available to the sentencing court, and we find no error in its decision to revoke Fairchild's probation.
The district court's judgment is affirmed.