Opinion
No. 107,431.
2013-05-17
STATE of Kansas, Appellee, v. David WILLIAMS, Appellant.
Appeal from Sedgwick District Court; James R. Fleetwood, Judge. Matthew J. Edge, 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; James R. Fleetwood, Judge.
Matthew J. Edge, 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 PIERRON, P.J., BRUNS and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
David Williams appeals from the district court's denial of his motion for discharge from probation. He argues the State's delay in prosecuting his probation violations deprived the court of jurisdiction to revoke his probation.
On September 10, 2007, under a plea agreement, Williams pled guilty to two counts of giving a worthless check.
On January 11, 2008, Williams was sentenced to 12 months' probation, with underlying concurrent sentences of 12 and 6 months' imprisonment. The district court also ordered him to pay restitution in the amount of $13,981.19. Williams' probation required that he obey all the laws of the State of Kansas, pay a minimum of $1,000 per month in restitution, and report to his intensive supervision officer (ISO) as directed. Kenneth Ray became Williams' ISO on January 11, 2008, at the beginning of his probation term. Williams' probation termination date was January 11, 2009. Williams' probation was transferred to Johnson County in June 2008, and Ray believed that he was living in Kansas City.
On October 27, 2008, the district court issued a warrant, alleging that Williams had violated the terms and conditions of his probation by committing two new crimes in Johnson County (on May 22 and June 3, 2008) and by failing to make his minimum restitution payments. Williams' last known address in Kansas City, Kansas, was listed on the warrant.
Throughout November 2008, Ray tried to get Williams to report to Wichita so he could serve him with the warrant. He called Williams and scheduled a meeting for November 4. On November 4, Williams called him and explained that he could not keep their appointment but was available on November 12. On November 12, Williams called him again and explained that he could not keep their appointment but was available on November 17. On November 17, Williams called him yet again and said he was aware of the warrant and preferred to speak with an attorney before taking any action. On November 26, Ray tried to call Williams but could not reach him. On December 5, Williams called Ray one more time and he said he planned on turning himself in to the Johnson County authorities. That same day, Williams' attorney entered an appearance in the Sedgwick County probation violation case.
On January 16, 2009, the district court issued an amended warrant, adding the allegation that Williams failed to report to his ISO (on November 17, 2008) and noting that his whereabouts were unknown. The amended warrant also listed Williams' last known address. Rather than making efforts to have Williams picked up in Kansas City or have Johnson County serve the warrant, Ray “left it to law enforcement officials with the warrant department.”
The amended warrant was served on November 3, 2009, and Williams finally appeared before the district court for his alleged probation violations on November 24, 2009. The revocation hearing was continued for various reasons.
On June 1, 2010, the district court issued a second amended warrant, adding allegations that Williams had committed six more crimes.
Before the revocation hearing, Williams filed a motion for discharge from probation. He claimed that “no reasonably diligent efforts were made to serve the probation violation warrant in a timely manner.” Specifically, he took issue with the delay between issuance of the original warrant in October 2008 and service of the amended warrant in November 2009.
On July 21, 2011, the revocation hearing was held. After hearing Ray's testimony, the district judge made the following finding:
“[T]he ISO's effort in this matter to get the warrant delivered ... to the defendant were reasonable and sufficient under the circumstances presented here. While there are many, many things that a law enforcement agency may do, they're not required to do every single one of those steps. More may have been done, but I believe what has been done is sufficient to keep the matter alive.”
The court denied Williams' motion for discharge, revoked his probation, and ordered him to serve a modified sentence of 10–months' imprisonment. Williams timely appeals.
Williams argues the district court lacked jurisdiction to revoke his probation because the State's belated efforts to prosecute the revocation motion violated his rights under the Due Process Clause of the Fourteenth Amendment to the United State Constitution.
Whether a district court has jurisdiction to revoke probation is a question of law over which an appellate court exercises unlimited review. State v. Hoffman, 45 Kan.App.2d 272, 275, 245 P.3d 992 (2011). And whether an individual's due process rights have been violated is a question of law over which an appellate court exercises de novo review. Hearst v. State, 30 Kan.App.2d 1052, 1055–56, 54 P.3d 518 (2002).
The Due Process Clause imposes procedural and substantive due process requirements whenever the State deprives someone of liberty, such as through the revocation of his or her probation. State v. Hall, 287 Kan. 139, 143, 195 P.3d 220 (2008). In Kansas probation revocation proceedings, the district court must bring the defendant before it “without unnecessary delay for a hearing on the violation charged.” K.S.A. 22–3716(b).
Due process demands that proceedings are instituted during the term of probation and that revocation occurs within a reasonable time thereafter. In other words, the issuance of an arrest warrant does not extend a district court's jurisdiction over a probationer indefinitely—the State must act without unreasonable delay in the issuance and execution of an arrest warrant. Hall, 287 Kan. at 144–45.
“Past Kansas cases, including the Court of Appeals decision in this case, measured the reasonableness of the delay by determining 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.]” 287 Kan. at 145.
Here, Williams does not argue he was prejudiced by the State's delay. Rather, he argues the State waived its right to pursue revocation of his probation. This case turns on this court's evaluation of the State's efforts to execute the warrant for Williams' arrest. Usually, these cases are fact sensitive.
In State v. Haines, 30 Kan.App.2d 110, 39 P.3d 95,rev. denied 273 Kan. 1038 (2002), the capstone waiver case, the court found that a 16–year delay in executing a probation violation warrant was unreasonable. In order to locate Haines during that time, the State sent two letters: one to his ex-wife and one to his mother, which were returned for lack of a sufficient address. Haines had not been in hiding but had been living in Ohio, working as a truck driver, and collecting Social Security benefits. But there was no evidence that the State attempted to locate him through his driver's license, Social Security number, or employer. This court held that the State waived the probation violation and the district court lacked jurisdiction because Haines' whereabouts could have been ascertained with reasonable diligence. 30 Kan.App.2d at 112–13.
In State v. Bennett, 36 Kan.App.2d 381, 138 P.3d 1284,rev. denied 282 Kan. 792 (2006), the court found that a 25–month delay in executing a probation violation warrant was unreasonable. The State made no effort to serve the warrant for 4 months, included Bennett in a local “felon of the day” television program at the 10–month mark, and never attempted service at the address listed on the warrant. 36 Kan.App.2d 386–87.
In State v. Myers, 39 Kan.App.2d 250, 255, 178 P.3d 74 (2008), the court found that a 2–year delay in executing a probation violation warrant was unreasonable. While there was evidence that the State entered the warrant in the “hot files,” there was no evidence that the warrant was sent to the local police department or served. The court held that the State waived the probation violation because there was an almost total lack of evidence regarding efforts made to attempt service. 39 Kan.App.2d at 253–55.
See State v. Alexander, 43 Kan.App.2d 339, 341–44, 225 P.3d 1195,rev. denied 290 Kan. 1095 (2010) (no waiver; less than 2–year delay not unreasonable because State entered warrant into national law enforcement database; published probationer's photo in newspaper and followed up on tips received; called probationer's mother and friend regarding his whereabouts; attempted to execute warrant at last known address; and forwarded probationer's information to sheriff in two other jurisdictions). See also State v. Carleton, No. 105,267, 2011 WL 6311920, at *2–4 (Kan.App.2011) (unpublished opinion)(no waiver; 13–month delay not unreasonable because State entered warrant into two databases; discovered probationer did not have driver's license by searching records; tried to find probationer at known address by searching every room; forwarded warrant to county where probationer's mother said he resided; and placed probationer on Most Wanted list), rev. denied 296 Kan. –––– (February 7, 2013).
In this case, there is a lack of evidence that the State attempted to serve Williams at his Kansas City address, which was listed on the warrant. On the other side is the length of the delay (only 1 year), the State's multiple phone calls ordering Williams to report in Wichita, and the fact that Williams absconded with knowledge of the warrant. It is obvious that the State's efforts were imperfect, but were they unreasonable under the circumstances? The answer is “No.”
The State's efforts to execute the warrant constituted reasonable efforts. There is no evidence that Williams was prejudiced by the delay, and the State contacted him numerous times to obtain his presence. The delay was not excessive, and he was aware he needed to turn himself in.
Affirmed.
* * *
POWELL, J., concurring.
I join the majority's opinion in full because I strongly agree the district court was correct when he found the State had used reasonable efforts to deliver the warrant in this case. I write separately to associate myself with the views expressed by Judge Malone, now Chief Judge, in his concurring opinion in State v. Myers, 39 Kan.App.2d 250, 257, 178 P.3d 74 (2008), where he wrote:
“I take exception to the language in Haines and Bennett that imposes a duty on the State to ‘investigate’ a probation absconder's whereabouts. For instance, Haines suggests that if a probationer initially cannot be found, then the State should attempt to locate the probationer through his or her driver's license, social security number, employer, or other means. I disagree. Law enforcement officers throughout Kansas are assigned the task of executing thousands of probation violation warrants in misdemeanor and felony cases. They have limited resources to accomplish this task. Courts should not impose a duty on law enforcement officers, including probation officers, to ‘investigate’ the whereabouts of probation absconders in addition to their many other duties.
“[The defendant] was never entitled to be placed on probation in the first place. This was an act of grace by the [district] court. Therefore, it should generally take an unusual set of circumstances, like the court was faced with in Haines, in order for the court to determine that [the defendant's] due process rights have been violated.”
In the present case, Williams is a felony probationer charged with committing eight new crimes, among other violations, while on probation. He was informed as early as November 2008 that a probation warrant had been issued for him. His probation officer made numerous attempts to have him report voluntarily so he could be served with the warrant, yet Williams gave him the run-a-round. On three separate occasions Williams promised to appear only to fail to do so for various reasons. In December 2008, he even stated he would turn himself in to the Johnson County authorities only to fail to do that as well. Williams did not want to report; it appears from the record that he lied about his willingness to report, and he failed to report for over a year. Williams was an absconder in blatant violation of his conditions of probation.
Williams' Sedgwick County probation officer had to rely on busy Johnson County authorities for help in serving a probation warrant upon an absconder. The probation officer's efforts were reasonable under the circumstances. See State v. Carleton, No. 105,267, 2011 WL 6311920, at *4 (Kan.App.2011)(unpublished opinion)(only in most unusual circumstances where law enforcement exhibits complete indifference are courts allowed to find due process violation), rev. denied 296 Kan. –––– (February 2, 2013).