Opinion
No. 111632.
2015-03-13
STATE of Kansas, Appellee, v. Mathew A. LOEFFLER, Appellant.
Appeal from Osage District Court; Phillip M. Fromme, Judge.Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.Brandon L. Jones, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Osage District Court; Phillip M. Fromme, Judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Brandon L. Jones, county attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., GREEN, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Mathew Loeffler appeals the revocation of his probation, arguing that the district court abused its discretion by denying his reinstatement request. Based upon our thorough review of the record and the parties' arguments, we disagree and affirm the district court's decision.
In keeping with a plea agreement, Loeffler pled no contest to one count of possession of marijuana with intent to sell or distribute, a severity level 3 drug felony. On July 15, 2013, the district court granted Loeffler's request for a dispositional departure and sentenced him to 36 months' probation with an underlying prison term of 49 months. Approximately 2 months later, however, the State moved to revoke Loeffler's probation because his intensive supervision officer (ISO) had designated him as an absconder due to his failure to report as directed. Consequently, the district court issued a bench warrant for Loeffler's arrest.
At Loeffler's revocation hearing, Kurt Layton, the ISO assigned to handle Loeffler's case, testified that he met with Loeffler for his intake appointment on July 17, 2013. After Layton reviewed the conditions of Loeffler's probation, Loeffler indicated that he wished to have his supervision transferred from Osage County to Shawnee County because, at the time, he was residing in Topeka. Layton subsequently agreed to send a request for supervision to Shawnee County. He advised Loeffler “he needed to cooperate with Shawnee County and most importantly of all that he needed to report to them as directed.” According to Layton, Loeffler stated that he understood it was “his responsibility to make sure that he followed through and met with Shawnee County.”
On July 23, 2013, Shawnee County assigned Loeffler's case to ISO Andrew Johnson. Johnson testified that he met with Loeffler 6 days later, and during this initial meeting, he reviewed “all the demographic information ... Layton had provided, [and] advised [Loeffler of the] expectations as an agency ... that he needed to report.” Following this discussion, Johnson noticed that the district court had ordered Loeffler to complete an alcohol and drug evaluation, so he questioned Loeffler as to whether he had complied with this condition of his probation. When Loeffler informed him that he had not yet completed his evaluation, Johnson ordered him to “attempt to get that scheduled.” At the conclusion of their meeting, Johnson directed Loeffler to report to him on August 5, 2013. According to Johnson, he made it “very clear to [Loeffler] that he was to report ... in person” on this date. Loeffler did not report to Johnson on August 5th. Instead, Loeffler left Johnson an apologetic voicemail at 5:30 that evening, advising Johnson that he wished to reschedule because “he had been sick for several days and bedridden.”
The following day, Johnson attempted to contact Loeffler at the number Loeffler had provided, but Johnson received neither an answer nor an option to leave a message. When Johnson did not hear anything from Loeffler over the course of the next couple of days, he attempted to visit Loeffler at his home on two occasions. No one answered the door during Johnson's first visit on August 8, 2013. When Johnson returned 1 week later, a woman advised Johnson that she believed Loeffler was home and asked him to wait outside while she attempted to locate him. When the woman returned to the door, she told Johnson that Loeffler “must have left.” Consequently, based upon Loeffler's failure to report, Johnson opted to decline Loeffler's transfer request. Upon receiving notice that Johnson was returning Loeffler's supervision to Osage County because “Loeffler had not been cooperating with them,” Layton filed an affidavit with the district court requesting the revocation of Loeffler's probation.
Loeffler testified that although he missed his August 5 appointment due to illness, he left Johnson a voicemail and he “never heard anything [in response] until [he] heard about the day that [Johnson] came to [his] house.” While Loeffler had “no clue” as to the status of his probation, he acknowledged that he never made an effort to contact Johnson or Layton after August 5. Loeffler explained, “I had done things that I shouldn't have and I got scared.... I was scared that what I did was going to put me away and I wouldn't be around my family anymore.” Loeffler further acknowledged that he had not yet completed his alcohol and drug evaluation, but he maintained that he had been unable to obtain such an evaluation because he did not “have a Social Security card and [he] was told that [he] would need one.”
Loeffler requested reinstatement, however, because he believed he would be able to successfully comply with all of the conditions of his probation in the future:
“I just want to do everything so I can better myself so that-if I can't take care of myself how am I supposed to take care of my family. I want to just take care of my family and do everything right.
“I hope that I can just do everything needed to be done and get done and be there for my family.”
Loeffler also insisted that he planned on “going to get [his alcohol and drug evaluation] and do everything [he] need[ed to,]” as he had recently received the proper paperwork to rectify his Social Security card issues. Moreover, Loeffler explained that he had imminent plans to wed the mother of his 3–month–old baby, and he was working for Labor Pro, a temp agency, while attempting to complete his GED and obtain full-time employment.
After considering the parties' arguments, the district court found that Loeffler was not “a suitable candidate for probation”; consequently, the court revoked Loeffler's probation and ordered him to serve his underlying sentence. The district judge explained,
“What I've heard, Mr. Loeffler, I don't believe you're a suitable candidate for probation. I'm going to go ahead and revoke your probation based upon you being an absconder and failure to contact and maintain contact with your Community Corrections Officers. I just don't see how putting you back on probation is anything but a waste of time from what I've heard occurred this last time and I think I'm going to go ahead and order that you serve the sentence.”
Loeffler subsequently filed this timely appeal, contending that the district judge abused his discretion when he refused to reinstate Loeffler's probation. Probation from serving a sentence is ‘ “an act of grace by the sentencing judge and, unless otherwise required by law, is granted as a privilege and not as a matter of right.’ [Citations omitted.]” State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once the State has proven a violation of the conditions of probation, revocation is within the sound discretion of the district court. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). A judicial action constitutes an abuse of discretion if it is (1) arbitrary, fanciful, or unreasonable, i.e., no reasonable person would have taken the view adopted by the court, (2) guided by an erroneous legal conclusion, or (3) based upon an error of fact. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).
Loeffler claims that no reasonable person would have adopted the district court's position because he expressed his “willingness and motivation to [successfully] complete [his] probation” at the revocation hearing. According to Loeffler, his claim that he “failed to contact his [ISO] because ‘[he] had done things that [he] shouldn't have[ ]’... implies drug usage, and the fear of a[n ISO]'s drug test.” Loeffler insists that reinstatement would have been the “appropriate remedy” for this violation because it would have enabled him to address his substance abuse issues and ‘ “be there for his family.” ‘
After carefully reviewing the record, however, we find that the district court did not abuse its discretion. The district court afforded Loeffler leniency in granting him probation at sentencing. Despite being advised on numerous occasions of the importance of reporting to his ISO as directed, Loeffler squandered his opportunity to avoid incarceration by failing to maintain contact with Johnson and Layton. Moreover, Loeffler's testimony at the revocation hearing suggests that he absconded because he committed additional violations of his probation. Loeffler's conduct demonstrates that he was not amenable to probation, and under these circumstances, it cannot be said that no reasonable person would have ordered Loeffler to serve his underlying sentence.
Affirmed.