Opinion
Nos. 111,058 111,059.
2014-10-10
STATE of Kansas, Appellee, v. Deontae JESTER, Appellant.
Robinson said that her mother and police had encouraged her to file the document and that her mom had given her advice on what to write. Robinson told the court that she had gone back the next day without her mother to drop the petition.
Appeal from Sedgwick District Court; Joseph Bribiesca, Judge.
Submitted for summary disposition pursuant to K.S.A.2013 Supp. 21–6820(g) and (h).
Before LEBEN, P.J., ARNOLD–BURGER, J., and DANIEL L. LOVE, District Judge, assigned.
MEMORANDUM OPINION
LEBEN, J.
Deontae Jester was serving probation for burglary and theft when he was charged with violating his probation in July 2013. Jester stipulated to two of the violations the State alleged—failing to obtain his GED and complete community-service work—but maintained that he did not commit the new crimes the State accused him of (domestic battery, endangering his child, and resisting police). But the district court concluded after an evidentiary hearing that Jester had committed these new crimes. The court then revoked Jester's probation and ordered him to serve the underlying 67–month prison sentence for his burglary and theft convictions.
Jester appeals, arguing that the district court abused its discretion when it revoked his probation. But it's within the district court's discretion whether to revoke probation once a violation has been established, and the court was not required to give Jester another chance since he had committed new crimes while on probation. See K.S.A.2013 Supp. 22–3716(c)(8). On the facts of this case, we find no abuse of discretion in revoking Jester's probation.
Factual and Procedural Background
In April 2010, Jester pled guilty to one count of burglary and one count of theft for crimes he committed the previous December. At the same hearing, he also pled guilty to two crimes in another case from earlier in 2009. In return for the guilty plea, the State agreed to recommend probation and recommend that the four counts run concurrently with each other but consecutively to any other case. At sentencing, Jester received 24 months of probation (supervised by community corrections), with an underlying sentence of 29 months that he would have to serve if he did not successfully complete the probation.
In June 2012, Jester stipulated to violating his probation by committing burglary and theft in December 2011. For the new crimes, he was sentenced to 38 months in prison, but the court again gave him a chance to avoid a prison sentence by successfully completing 24 months of probation. The court also revoked and reinstated his probation for the 2010 case. The judge warned Jester that he would not receive another chance if he violated his probation again:
“I want you to understand, this is a no tolerance probation. Do you understand what that means?
....
“[Jester:] It means that I can't mess up. It's a strict probation.
“That's right. And if I see you back in court and you're found in violation, you're looking at 67 months in prison. Is that what you want?
“[Jester:] No, sir.”
Jester was still serving this probation sentence in July 2013 when his intensive-supervision officer found that he had violated his probation by (1) failing to obtain his GED or attend the classes required to do so; (2) committing three new offenses—beating his girlfriend, endangering his child, and resisting police; and (3) failing to complete 40 hours of court-ordered community service. Jester acknowledged committing the first and third violations but denied that he had committed new crimes.
The new-offense allegations arose from an incident in July 2013 at the home Jester shared with his girlfriend, Sierra Robinson. Jester and Robinson both testified that they had been arguing that day. Robinson sent a text message to her mother and asked her to call a cab so Robinson could get out of the house and visit her. Shortly after the taxi got there, police arrived. Robinson speculated that her mother had asked the cab driver to call the police.
Officer Daniel Brown testified that when he had arrived at the house, he had seen a black male running inside and a black female “hysterical in the front yard in the driveway.” He said that the cab driver had told the officers that he had seen Jester hitting Robinson. Brown then went to the house and told Jester through the locked door that he was under arrest. Jester did not let him in, and Brown testified that Jester had told his girlfriend, “Do not allow them to come inside, or you know what will happen.” To that, Brown said Robinson had responded, “You shouldn't be hitting me, then, and threatening to kill me.” After Brown threatened to tase Jester, Jester opened the door, and officers took him into custody.
When asked about her role in the incident, Robinson said that she had just wanted to get her baby from the house to take the baby with her to her mother's. She said she had not told police that Jester had hit or threatened her and had not yelled at Jester after police arrived. Officer Tommy Fulcher, however, testified that Robinson had told him Jester had hit her in the head, leaving bumps that were not visible due to her thick hair.
After the incident, Robinson filed a written petition for protection from abuse against Jester, in which she stated:
“The morning of July 26, 2013, Deontae Jester put his hands on me and physically hurt me. I got away from him into a cab, then called police because of the abuse and threats that he was going to kill me. He also had himself and my son in the house. He locked me out of the house.”
Robinson said that her mother and police had encouraged her to file the document and that her mom had given her advice on what to write. Robinson told the court that she had gone back the next day without her mother to drop the petition.
Based on Robinson's written statement and the testimony by the police officers who had responded to the incident, the court found that Jester had violated his probation in all of the ways the State alleged. It revoked his probation and ordered Jester to serve the underlying prison sentences—29 months in the 2010 case and 38 months in the 2011 case for a total of 67 months. (By this point, Jester had completed his sentence in the 2009 case.) Jester has appealed to this court.
Jester's Appeal
On appeal, Jester argues that the district court abused its discretion when it revoked his probation and imposed his underlying prison sentences. While he acknowledges that he violated his probation by failing to complete his GED and community-service hours, he argues that he did not commit any new crimes while he was on probation. That could be significant since new statutory provisions in effect when these matters were heard in 2013 provided that a court generally give a probationer an intermediate sanction (such as a few days in jail) before ordering that the probationer serve the underlying prison sentence. See K.S.A.2013 Supp. 22–3716(c)(1). But intermediate sanctions are not required before sending the probationer to prison if the offender commits a new felony or misdemeanor. K.S.A.2013 Supp. 22–3716(c)(8).
Here, the district court determined after an evidentiary hearing that Jester had committed three new offenses, thus violating his probation. A violation of the conditions of probation need only be established by a preponderance of the evidence—that is, it is more probably true than not that the violation occurred. State v. Francois, No. 109,370, 2014 WL 3291448, at *2 (Kan.App.2014) (unpublished opinion) (citing State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 [2006] ). An appellate court reviews a factual finding by the district court for substantial evidence, which is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012).
Once a violation has been established, the decision to revoke probation has traditionally been considered 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). That discretion is now limited by K.S.A.2013 Supp. 22–3716, but its provisions requiring intermediate sanctions before ordering the defendant to serve the underlying prison term did not apply to Jester once the court found that he had committed new offenses. Accordingly, we review the district court's decision to revoke his probation and order him to serve the prison sentence only for an abuse of discretion. 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 the decision made by the district court. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012); Gumfory, 281 Kan. at 1168, Syl. ¶ 1.
We find nothing unreasonable about the district court's decision here. Jester admitted that he had violated his probation by failing to complete his GED and community-service hours, and he committed significant new offenses while on probation. The district judge had warned Jester that he would not receive another chance: “I want you to understand, this is a no tolerance probation.... And if I see you back in court and you're found in violation, you're looking at 67 months in prison” Jester said he understood. Yet Jester did not put in the required hours toward his GED or court-ordered community service.
In addition, there was sufficient evidence of the new crimes. Jester himself acknowledged that when the police were at his door, he knew he was under arrest and still refused to let the officers in. Through his statements, Jester tacitly acknowledged that he had committed a crime. Jester's attorney even said he would not contest the State's argument that Jester had resisted the police. Regarding child endangerment, the parties agreed that Jester was holding the baby while the police attempted to break down his door and arrest him. And Robinson's petition for protection from abuse and police officers' testimony that both Robinson and the cab driver had said Jester had hit Robinson support the court's finding that Jester committed a domestic battery.
On Jester'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. 62). We have reviewed the record that was available to the sentencing court, and we find no error in its decision to revoke Jester's probation.
The judgment of the district court is therefore affirmed.