Opinion
111,092.
04-24-2015
STATE of Kansas, Appellee, v. Anthony L. SCOTT, Appellant.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
In November 2011, Anthony L. Scott was in the back seat of a vehicle stopped by police. As the officers approached the vehicle, they saw the front seat passenger appear to stuff something under the seat. An officer saw a lighter and glass crack pipe in the driver's lap. After arresting the driver, other officers removed the front seat passenger. The officers found a bag of crack cocaine in the back seat between the upper backrest and the side of the car. Police also found a metal crack pipe on the back passenger floor.
Scott and the other two occupants of the vehicle were charged in case No. 11–CR3291 with possession of cocaine and misdemeanor possession of paraphernalia. Scott ultimately waived his right to a jury trial and the State presented the evidence discussed above at a bench trial. The trial court convicted Scott of possession of cocaine but acquitted him on the paraphernalia charge. At a subsequent sentencing hearing, the trial court granted Scott's request for a dispositional departure sentence. The court sentenced Scott to 18 months' probation through community corrections with an underlying sentence of 42 months.
On the same day he was sentenced in the 2011 case, Scott pled guilty to four counts in case No. 12–CR–1788, including three drug-related charges. Scott again was granted a departure sentence to probation with an underlying sentence of 51 months, to run consecutive to the sentence in No. 11–CR–3291. Scott did not appeal within 14 days of the sentencing hearing in these cases.
In May 2013, 2 months after Scott was sentenced, the State issued a warrant for his arrest claiming he had violated the terms of his probation. Specifically, the State alleged Scott had associated with a known gang member and hindered police officers' attempts to apprehend a wanted felon. Scott requested an evidentiary hearing relating to the alleged violations.
The trial court held an evidentiary hearing on the motion to revoke Scott's probation on September 27, 2013. Based on the testimony, several deputies had arrived at Scott's home where a suspect wanted on a warrant—Ronald Mathis—was reportedly located. Deputy Douglas Robertson went to the back of the house while two other deputies approached the front of the house. In the backyard, Robertson saw two men talking. When the men saw the uniformed deputy, one man ran into the house. Robertson approached the remaining man, Scott, and asked who had run into the house. Scott gave the deputy a name other than Mathis. Robertson sent Scott to the front yard to talk to the other deputies while Robertson watched the back door; Scott walked through the house to reach the front yard. There, Scott told Deputy Edward Clark that the man in the house was a friend, but his name was not Ronald. After reviewing a photo of Mathis provided by the deputy, Scott denied that the man inside was the person they were looking for. Scott also refused to consent to the officers' search of the house. After several minutes, Mathis exited the home voluntarily and the officers took him into custody. The deputies confirmed Mathis' identity based on the photo they had shown Scott.
Officer Joseph Steams, Wichita's Gang Intelligence Officer, testified that the Wichita Police Department has a secure database that stores information about gang members and gang activities. Names are included in the database based upon the state statutory definition of “gang member.” Steams testified to how the database was maintained and how someone would be removed from the database if they were not involved in criminal or gang activity for 3 years. Steams testified that as of February 2013, Mathis was identified as a documented gang member. The database reflected that Mathis had admitted being a member of the Insane Crips gang in 2006. Steams also testified Scott was in the database dating back to 1994, as a self-admitted member of the Insane Crips. Scott had gone to prison for second-degree murder in 1992 and had contact with known gang members after his release.
Scott's intensive supervision officer (ISO) testified he had reviewed with Scott each condition of his probation. The ISO had informed Scott he was prohibited from associating with persons affiliated with the Insane Crips gang or with persons currently on pretrial supervision, probation, or parole. Scott initialed and signed the list of conditions when the ISO reviewed those with him.
Mathis testified he was living next door to Scott at the time of his arrest. He was with Scott in Scott's backyard getting ready to do some work when the deputy arrived. Mathis ran into the house on his own initiative but surrendered himself when he heard officers questioning Scott about his probationary status. Mathis denied he ever admitted to police that he was an active gang member. Mathis testified, however, that he ran with the Crips in the 80's and 90's, at the same time as Scott. Mathis admitted he saw gang members from time-to-time but stated he had stopped hanging around with them in 1997, after a close friend had been killed and Mathis' son was born.
Scott testified that Ronald Mathis had been in his backyard in May 2013 while they were working on a lawn mower. Scott testified he told Deputy Robertson, after Robertson asked who had run into the house, that the man was his friend, “John.” Scott admitted that he knew the man was Mathis but Scott referred to him as John because Mathis did not want to be known by his old gang name. He claims the deputies at the front of the house simply asked if Mathis lived there and he told them “no.” He also admitted he had been shown a photograph but testified the photo did not look like Mathis, as the man in the photo was about 70 pounds heavier than Mathis and the photo showed a man with long hair.
Scott testified he was not attempting to hide Mathis from the police and he did not know there was an outstanding warrant for Mathis' arrest. He also testified that none of the officers specifically mentioned the name of Ronald Mathis. Scott also stated that he did not know that Mathis was considered an active gang member in 2013.
After hearing the evidence, the trial court found Scott had violated the terms of his probation finding he had failed to cooperate with law enforcement because he knew the officers were looking for Mathis. In addition, the court found that Scott knew Mathis had gang affiliations, at least in the past. However, the court found public safety was not at issue and imposed a 3–day jail sanction under House Bill 2170. After the sanction was imposed, the court reinstated and extended Scott's probation for 18 months. Scott timely appealed from the court's ruling.
In his notice of appeal filed October 3, 2013, Scott appealed in both cases from “all adverse rulings.” Scott first contends the trial court erred in convicting him of possession of cocaine (apparently in No. 11–CR–3291) because the evidence did not establish he had possession or control over the cocaine found in the back seat area of the car in which he was riding. However, Scott was sentenced for that crime on March 28, 2013.
As the State notes, Scott's attempt to challenge his original conviction presents a jurisdictional issue. Determining whether an appellate court has jurisdiction raises a question of law over which the scope of appellate review is unlimited. State v. Brown, 299 Kan. 1021, 1027, 327 P.3d 1002 (2014).
The filing of a timely notice of appeal following sentencing is jurisdictional. The failure to file a timely notice of appeal requires dismissal of the appeal. Albright v. State, 292 Kan. 193, 197, 251 P.3d 52 (2011). Under K.S.A.2014 Supp. 22–3608(c), a defendant has 14 days from the date of his sentence to file a notice of appeal. No such notice of appeal was filed by April 11, 2013; the only notice of appeal in the record and appearance docket was filed October 3, 2013, after Scott's probation was revoked and reinstated. Nor is there any evidence in the record or this court's files that Scott received permission to file a late notice of appeal under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982).
Because Scott failed to timely appeal from his original conviction, we have no jurisdiction to consider the sufficiency of the evidence presented at trial. This claim should be dismissed.
In his second issue, Scott asserts his due process rights were violated at his revocation hearing because he did not knowingly and willfully violate the terms of his probation. Scott claims he did not know Mathis was still considered an active gang member and the “secret” database kept by the State gave him no means of knowing who active gang members were so he could avoid them.
Again, this issue was not presented to the trial court. Scott did not object to any of the testimony regarding the gang information database. Nor did Scott argue that his due process rights were implicated in the proceeding. Issues not raised before the trial court typically cannot be raised on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). This limitation also applies when the new issue asserts constitutional arguments. State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853 (2014). Finally, Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40) requires an appellant to explain why a new issue should be considered for the first time on appeal. Litigants who fail to comply with this rule risk a ruling that the issue is improperly briefed and will be deemed waived or abandoned. State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014) (cautioning future litigants to comply with Rule 602[a] [5] ).
Here, Scott has failed to establish why we should allow him to raise a new constitutional issue for the first time on appeal. He only asserts the issue is a novel one avoided in other cases and that we should resolve the issue. The only recognized exceptions to the general rule barring new issues are: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the judgment of the trial court may be upheld on appeal despite its reliance on the wrong ground or having assigned a wrong reason for its decision. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). Because the facts are disputed about Scott's knowledge, the only potential exception applicable in this case is the exception pertaining to fundamental rights.
Whether a party has been denied constitutional due process raises a question of law over which we have unlimited review. State v. Wade, 284 Kan. 527, 534, 161 P.3d 704 (2007). The cases cited by Scott provide little support for his due process arguments. For example, the requirement of a “willful” violation of probation in Wyoming is based on its code of criminal procedure, not constitutional due process concerns. See Edrington v. State, 185 P.3d 1264, 1266 (Wyo.2008) (revocation of probation is largely governed by court rule under which the State is required to establish a willful probation violation by a preponderance of the evidence. W.R.Cr.P. 39 [a][5].). In Idaho, a defendant's probation may be revoked whether it is willful or not. Where a violation is determined to be nonwillful, however, a district court may not “ ‘revoke probation and order imprisonment without first considering alternative methods to address the violation.’ [Citation omitted.]” State v. Sanchez, 149 Idaho 102, 106, 233 P.3d 33 (2009). Similarly, the case of In re Bruno R., 133 N.M. 566, 569, 66 P.3d 339 (Ct.App.2003), involved two terms of probation which conflicted, placing the probationer in an “untenable” position.
Several of the cases Scott relies on invoke Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). In Bearden, the United States Supreme Court held equal protection and due process concerns arise when the State seeks to revoke a defendant's probation for failure to pay a fine and restitution, absent evidence and findings that the defendant willfully failed to pay and that alternative forms of punishment were inadequate. 461 U.S. at 665. This case does not involve such concerns.
We need not address the constitutional issue. The evidence is undisputed that both Scott and Mathis had been members of the Insane Crips gang at some point prior to Scott's current convictions. The men had known each other during the period they admitted they were active gang members and after they claim they were no longer engaged with gang activity. Scott's conditions of probation barred him from associating with anyone “affiliated with” the Insane Crips gang. Scott did not complain to his ISO that he did not understand the meaning of the probation terminology, nor did he seek clarification later.
Most importantly, the trial court found Scott had knowingly failed to cooperate with authorities after it was made clear they were looking for Mathis. The State was only obligated to prove by a preponderance of the evidence that Scott violated the terms of his probation. To support an order revoking probation, the commission of the violation must be established by a preponderance of the evidence. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). There is substantial competent evidence to support the court's finding that Scott knew who the officers were seeking and intentionally refused to cooperate with them. See State v. Inkelaar, 38 Kan.App.2d 312, 315, 164 P.3d 844 (2007), rev. denied 286 Kan. 1183 (2008) (the standard of review of the district court's factual findings regarding a probation violation is substantial competent evidence).
Once the State has proven a defendant has violated the terms of probation, the revocation of that probation is viewed on appeal for abuse of discretion. See State v. Skolaut, 286 Kan. 219, 227–28, 182 P.3d 1231 (2008). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based upon an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).
Here, despite Scott's lengthy criminal history, numerous bond revocations prior to his conviction, and finding of probation violations, the trial court still imposed only a 3–day jail sanction and extended Scott's probation. The trial court did not abuse its discretion under the facts of this case.
Affirmed.