Opinion
No. 108,742.
2013-11-8
STATE of Kansas, Appellee, v. Clifton POWELL, Appellant.
Appeal from Sedgwick District Court; Phillip B. Journey, Judge. Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Matthew L. Sullard, legal intern, Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Phillip B. Journey, Judge.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Matthew L. Sullard, legal intern, Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., ARNOLD–BURGER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Clifton Powell appeals the revocation of his probation, arguing (1) that the district court lacked substantial competent evidence to find that Powell violated the terms of his probation, and (2) that the district court abused its discretion when it revoked Powell's probation without reinstating it. Because we find the district court's decision was based on substantial competent evidence and that the district court did not abuse its discretion, we affirm.
Factual and Procedural History
Powell pleaded guilty to and was convicted, in case 11 CR 349, of aggravated assault, two counts of domestic battery, criminal damage to property, and criminal trespass. The district court granted Powell's motion for a downward dispositional departure and sentenced him to 24 months of probation, with an underlying prison term of 29 months.
On the same day, Powell pleaded guilty to and was convicted, in case 11 CR 1198, of aggravated battery. The district court granted Powell's downward dispositional departure motion and sentenced him to 36 months of probation, with an underlying prison term of 172 months.
Four months later, in both cases, Powell's probation was revoked and reinstated for an extended 36 months. Six months after his probation was reinstated, Powell's probation was again revoked and reinstated. At the hearing, the State expressed concern that Powell was having contact with the victims in the case. Even though he was on electronic monitoring and the probation office knew where he was physically located, the probation office expressed concern that it could not tell who was in the building with him. The probation officer testified that at the time that the probation officer had conducted a curfew check, Powell had failed to answer the door. He failed to answer the door at both 11 p.m. and 1 a.m., although the officer knew he was at home from the GPS bracelet. The probation officer believed Powell was hiding someone in the house and asked the judge to require Powell to take a polygraph test regarding his contact with victims in the case. The district judge ultimately decided that due to the cost he would not require a polygraph and confirmed with Powell that he would open the door in the future. When Powell replied that he was either asleep or did not hear the knock on the door, the district court reminded Powell that he was to answer the door during curfew checks.
Just 2 months later, a warrant was filed alleging that Powell violated his probation conditions by driving on a revoked license, by failing to answer the door of his residence during a curfew check, and by being arrested on child support warrants.
After an evidentiary hearing, the district court found that Powell violated his probation by driving on a revoked license and by failing to answer the door during a curfew check. The district court revoked Powell's probation and ordered him to serve his underlying reduced sentence of 104 months' incarceration.
Although Powell filed his appeal late, the district court allowed him to appeal out of time.
Additional facts will be added as needed. There was a preponderance of the evidence to support the finding that Powell violated the terms of his probation.
First, Powell argues that there was no official requirement that he answer the door when a curfew check is conducted, and even if there was, he had taken an over-the-counter sleep aid the night of his curfew check and did not hear anyone knocking at the door. Second, Powell argues that there was insufficient evidence that he drove on a revoked license.
“To sustain an order revoking probation on the ground that a probationer has committed a violation of the conditions of probations, commission of the violation must be established by a preponderance of the evidence. [Citation omitted.]” State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). A preponderance of the evidence means evidence that is “ ‘ “of greater weight or more convincing than the evidence which is offered in opposition to it” ‘ “ In re B.D.-Y., 286 Kan. 686, 691, 187 P.3d 594 (2008)
The State asserts that Powell is asking this court to reweigh the evidence presented at the probation revocation hearing. It is not the function of the appellate courts to reweigh evidence or evaluate the credibility of witnesses. See State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
Powell was subjected to a curfew while on probation. He was to be home between the hours of 9 p.m. and 5 a.m. He was also prohibited from having any contact with the victims in the case. At a previous revocation hearing—at which it was alleged that he had likewise failed to answer the door during a curfew check—he confirmed with the district judge that he would answer the door in the future after the State had expressed a concern that he was continuing to have contact with the victims.
Powell does not deny that he failed to answer the door during the curfew check. Powell appears to be under the impression that because he was subjected to an electronic monitoring device that indicated he was at home at the time of the curfew check, there was no need for him to answer the door during the curfew check. If Powell is correct, then the curfew check would be futile. Thus, whether there was a specific provision in his probation order requiring him to answer the door during a curfew check is irrelevant. It is implicit that a probationer answer the door during a curfew check to confirm his or her presence in the home after curfew regardless of the fact that the probationer is subject to an electronic monitoring device. This conclusion is even more reasonable in this case because the individuals conducting the curfew check were unaware that Powell had an electronic monitoring device activated at the time and would not have had any information that he was in the home. In addition, an electronic monitoring device would not indicate whether any of the victims were in the residence with him.
The State presented evidence that Powell failed to answer the door during a curfew check. Two intensive supervision parole officers and a Wichita police officer went to Powell's door and knocked on the door and windows in a progressively louder manner for approximately 30 to 45 minutes. They repeated, “Wichita Police, please come to the door. We know you are in there. Please come to the door.” Lights and a television were on inside and at one point a curtain was pulled back and they saw a child inside. Powell did not deny that he failed to answer the door, but he explained that he had taken a sleeping aid and did not hear anyone knocking at the door. Powell's argument asks this court to reweigh the evidence, which as stated above is not allowed. There was a preponderance of the evidence to support the district court's finding that Powell failed to answer the door during a curfew check and that Powell's failure to do so violated the terms and conditions of his probation.
In addition, the State presented a preponderance of the evidence to establish that Powell was driving on a revoked license in violation of his probation. Powell testified that he and his friend drove to get carpet and while in the store parking lot another truck backed into Powell's van. Powell testified that his friend was driving the vehicle when the accident occurred and his friend left the scene because he did not want to be caught as he was in the country illegally. Officer James Bray testified that Powell approached his patrol vehicle and informed him that a truck had backed into his vehicle. Powell was alone when he approached Bray. Bray confirmed that the vehicle was registered to Powell and also discovered that Powell had a revoked license. In his written statement Powell never indicated that he not was the driver when he wrote “pulled behind truck at stop sign ... and hit front end.”
Powell is again asking this court to reweigh the evidence and find his version to be more credible. Although the evidence against Powell was not direct evidence, it was circumstantial and even the gravest offense can be based entirely on circumstantial evidence. See State v. Ward, 292 Kan. 541, 581, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). Powell was the only person associated with the van when he reported the accident, and Powell never indicated that he was not the driver when the accident occurred. Because this court cannot reweigh evidence and because the State established—through officer testimony—that Powell drove on a revoked license, then a preponderance of the evidence established that Powell violated the terms and conditions of his probation. The district court did not abuse its discretion when it revoked Powell's probation and ordered him to serve his underlying reduced sentence.
Powell contends that the district court abused its discretion when it revoked his probation and ordered him to serve his underlying reduced sentence.
Unless required by law, probation is a privilege and not as a matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once a probation violation has been established, the decision to revoke probation is within the sound discretion of the district court. See State v. Skolaut, 286 Kan. 219, 227–28, 182 P.3d 1231 (2008); State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. Ward, 292 Kan. at 550.
In Powell's case, there was evidence presented that he violated the terms and conditions of his probation: he failed to answer the door during a curfew check and he drove on a revoked license. The district judge noted that the case was originally presumptive prison, but the court had granted Powell probation at the request of the victim and over the State's objection. The judge noted that he had reinstated Powell's probation twice before. Although he found sufficient evidence to revoke Powell's probation, he noted the positive progress Powell had made and modified Powell's sentence on 11 CR 1198 from 172 months to 75 months, for a controlling sentence on both cases of 104 months, approximately half of his original underlying sentence. The district court's decision to revoke Powell's probation and modify his sentence downward was not arbitrary, fanciful, or unreasonable. Accordingly, the district court did not abuse its discretion by revoking Powell's probation and ordering him to serve his underlying reduced sentence.
Affirmed.