Opinion
No. 105,958.
2012-05-11
STATE of Kansas, Appellee, v. Loretta D. SANDERS, Appellant.
Appeal from Sedgwick District Court; Joseph Bribiesca, Judge. Meryl Carver–Allmond, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Joseph Bribiesca, Judge.
Meryl Carver–Allmond, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Loretta Sanders appeals the district court's denial of her motion to dismiss a probation violation warrant. Sanders argues that the State did not make reasonable efforts to execute the probation violation warrant and, by this failure, violated her due process rights under the Fourteenth Amendment to the United States Constitution. For the reasons set forth herein, we affirm the district court's judgment.
In January 2008, in four separate cases that were later consolidated, Sanders pled guilty to and was convicted of two counts of identity theft, one count of attempted forgery, and six counts of forgery. The district court placed Sanders on probation, and one of the conditions of probation was that Sanders was to report to her supervisor as directed. Sanders allegedly violated the conditions of her probation the following month by testing positive for drugs and by failing to report to her supervisor. The district court issued a warrant for Sanders' arrest in all four cases on February 12, 2008, but the warrant was not executed until February 4, 2011, shortly after she was arrested on unrelated charges in Oklahoma. Sanders was subsequently extradited to Kansas.
On February 24, 2011, Sanders filed a motion to dismiss her probation violation warrant, claiming that because the warrant was not executed until almost 3 years after it was filed, her due process rights had been violated. On March 11, 2011, the district court held a hearing on the motion, at which Sedgwick County Sheriff's Deputy Edward Clark testified. Clark had been assigned to locate Sanders in February 2008, after the warrant was issued for her arrest. Clark testified that after he was assigned the warrant, he checked to see if there were any utilities in Sanders' name, if there was a vehicle registered to her, and if she was incarcerated by the Kansas Department of Corrections. Clark also called Sanders' mother and left a message, went to Sanders' home and knocked on the door, and spoke with the beat officers in the area. However, these efforts were unsuccessful in locating Sanders.
In February 2009, Clark checked again for utilities in Sanders' name and returned to the address on file for Sanders, where he spoke with Sanders' mother, who did not know where Sanders was located. Clark then placed Sanders on the Sedgwick County Sheriff's Top 10 Most Wanted list, which was available on the department's website and distributed nationwide. In September 2010, Clark again checked for utilities or vehicles registered in Sanders' name and also checked to see if there was a new address listed on Sanders' driver's license. In December 2010, Clark inquired with the family law court trustee's office to see if Sanders had reported any new employment, but she had not done so. As stated above, the warrant was eventually served on Sanders when she was arrested in Oklahoma on unrelated charges. After hearing the testimony and argument, the district court denied Sanders' motion, finding that the State had made reasonable efforts to locate Sanders after the probation violation warrant was issued. The district court revoked Sanders' probation, but the district court reinstated and extended the probation for a longer term. Sanders timely appealed the denial of her motion to dismiss the warrant.
“The Due Process Clause imposes procedural and substantive due process requirements whenever the State deprives someone of liberty, such as through the revocation of an individual's probation. [Citation omitted.]” State v. Hall, 287 Kan, 139, 143, 195 P.3d 220 (2008). Moreover, “[t]he failure to act in a timely and reasonable manner may divest the district court of jurisdiction to revoke probation if there is unreasonable delay, which must be determined on the circumstances of each case. [Citation omitted.]” State v. Curtis, 42 Kan.App.2d 132, 136–37, 209 P.3d 753 (2009). Whether jurisdiction exists and whether due process rights were violated are both questions of law over which an appellate court's scope of review is unlimited. State v. Ellmaker, 289 Kan. 1132, 1147, 221 P.3d 1105 (2009), cert denied130 S.Ct. 3410 (2010).
When examining the length of time between issuance and execution of a probation violation warrant, courts must determine
“whether ‘prejudice to the defendant is shown by the delay, or there is an indication that the violation has been waived by the government.’ [Citation omitted.] If the State waived the violation, the probationer does not have to establish prejudice. [Citations omitted.] The determination of whether inaction constitutes an ‘unnecessary delay depends upon the circumstances of each case.’ [Citation omitted.]” Hall, 287 Kan. at 145.
On appeal, Sanders does not argue prejudice; rather, she contends that the State waived its opportunity to prosecute the probation violation. She asserts that Clark was not sufficiently active in his attempts to locate her; “all [he] did was make a few phone calls” and approximately 1 year lapsed between his activities. According to Sanders, this shows that the State waived its prosecution of her probation violations. To support her argument, Sanders first looks to State v. Haines, 30 Kan.App.2d 110, 39 P.3d 95,rev. denied 273 Kan. 1038 (2002). In 1982, Delbert Haines pled guilty to one count of attempted rape and was ordered to pay a $1,000 fine and placed on 2 years' probation, with out-of-state supervision contemplated, with an underlying sentence of 3 to 10 years' imprisonment. 30 Kan.App.2d at 110. Haines went to work as an over-the-road truck driver and moved to Ohio; he later stated that he was told he would not have to report after he paid off his fine and court costs. Haines maintained he gave money to his wife to send to Kansas to pay for the fine and costs, but she did not send the money. 30 Kan.App.2d at 110. About 1 year later, the district court issued a warrant for Haines' arrest for failure to pay the fine and for failure to report. The warrant stated that the probation office sent letters to addresses believed to be his mother's and his wife's, but the letter from Haines' mother's house was returned because of an insufficient address and the letter to Haines' estranged wife was not returned. 30 Kan.App.2d at 111.
Sixteen years later, Ohio police responding to an unrelated issue at Haines' house discovered there was an outstanding Kansas warrant. Haines was served with the warrant, and he waived extradition to Kansas. Although Haines asked the district court to allow him to pay the fine and to reinstate his probation, the district court revoked the probation and ordered Haines to serve the original sentence. 30 Kan.App.2d at 111. On appeal, this court reversed the district court and ordered Haines released and his probation terminated, finding:
“The record is clear that the State's efforts to locate Haines were restricted to two letters, one sent to his [estranged] wife and one to his mother's residence that was returned for lack of a sufficient address. More than 16 years have gone by since the State acted.... There is no indication that the State attempted to locate [Haines] through his driver's license, social security number, employer, or any means other than mailing letters to his mother's house and his estranged wife's house.... It is clear he did not attempt to secret himself away. The State's failure to conduct a reasonable investigation to ascertain Haines' whereabouts constitutes a waiver of the violation.” 30 Kan.App.2d at 113.
Although Sanders attempts to analogize her circumstances to Haines', the two cases are easily distinguishable. First, the length of time between the instant issuance and execution of the warrant was 3 years, not 16 years as it was in Haines, Additionally, in Clark's investigation into Sanders' whereabouts, he did more than merely send two letters; he repeatedly made inquiries throughout the 3 years between the warrant's issuance and execution. Because the investigations here and in Haines were so different, Haines does not support Sanders' argument that the delay violated her due process rights.
Sanders also cites State v. Williams, 20 Kan.App.2d 142, 146, 884 P.2d 743 (1994). As the State points out, Williams did not concern a delay between the issuance and execution of a probation violation warrant. Rather, Williams addressed whether a district court may revoke probation based only on a ground alleged in a motion filed after the expiration of the probation term. 20 Kan.App.2d at 150–51. Because it concerned a different facet of probation revocation, Williams is inapplicable to the instant case.
Here, unlike in Haines, the State acted in a timely and reasonable manner and met the requirements of due process in serving the warrant. Clark obtained the warrant the same month it was issued and, over approximately the next 3 years, checked for utilities in Sanders' name at least three times, inquired about vehicles registered to Sanders at least twice, checked at least three times to see if Sanders' driver's license had an updated address, checked at least three times with the Kansas Department of Corrections to find out whether Sanders was incarcerated, called Sanders' mother, went to Sanders' mother's address and ultimately spoke with Sanders' mother, spoke with beat officers assigned to Sanders' neighborhood at least twice, checked with the court trustee's office to see if Sanders had reported any new employment, and placed Sanders on the Sedgwick County Sheriffs Top 10 Most Wanted list. Accordingly, we conclude the district court did not err in denying Sanders' motion to dismiss the probation violation warrant.
Affirmed.