State v. Grossman

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No. 102,644

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

PATRICK B. GROSSMAN,
Appellant.

SYLLABUS BY THE COURT

1.
This court has unlimited review when determining whether the district court
complied with the requirements of due process during a probation revocation hearing.

2.
Minimum due process includes written notice of the claimed violations of
probation, disclosure to the probationer of the evidence against him or her, the
opportunity to be heard in person and to present evidence and witnesses, the right to
confront and cross-examine adverse witnesses, a neutral and detached hearing body, and
a written statement by the factfinder as to the evidence relied on and reasons for revoking
probation. The probationer also has a right to the assistance of counsel.

3.
An illegal sentence is a sentence that does not conform to the statutory provision
either in character or in the term of the punishment authorized, is imposed by a court
without jurisdiction, or is ambiguous as to the time and manner in which it is to be
served.


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4.
Whether a sentence is illegal is a question of law over which an appellate court has
unlimited review.

5.
Probation is not a sentence, nor does it affect the sentence. Probation is a
procedure under which a defendant, found guilty of a crime upon verdict or plea, is
released by the court after imposition of sentence, without imprisonment except as
provided in felony cases, subject to conditions imposed by the court and subject to the
supervision of the probation service of the court or community corrections.

6.
K.S.A. 21-4610(b) is discussed and applied.

7.
After the State establishes a probation violation by a preponderance of the
evidence, the decision to revoke probation is within the sound discretion of the district
court.

8.
Before automatically revoking probation and imposing imprisonment, a district
court must inquire into the reasons for an indigent probationer's failure to comply with
the financial conditions of his or her probation. However, this inquiry is not required
when there are alternate grounds to support the revocation.

9.
The district court is only required to assign a probation violator to community
corrections before being ordered to serve his or her underlying sentence when the
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defendant has not already had a prior assignment to a community correctional services
program.

Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed February 25,
2011. Affirmed.

Patrick B. Grossman, appellant pro se.

Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Steve
Six, attorney general, for appellee.

Before PIERRON, P.J., MARQUARDT and HILL, JJ.

MARQUARDT, J.: Patrick B. Grossman filed a pro se appeal of the district court's
order revoking his probation. We affirm.

On April 19, 2007, Grossman pled no contest to violating the Kansas Offender
Registration Act, K.S.A. 22-4901 et seq., a severity level 5 person felony, by failing to
notify law enforcement in writing of his new address within 10 days of changing his
residence. See K.S.A. 2006 Supp. 22-4904(b). The district court sentenced Grossman on
June 27, 2007, to an underlying 53 months in prison, with 24 months' postrelease
supervision. The district court granted Grossman's downward dispositional departure
motion and placed him on probation for 36 months, to run consecutive to the time that
Grossman was still required to serve on an earlier parole revocation.

In December 2008, over a year after the revocation order, the State filed a motion
to clarify the starting date for Grossman's probation. At the motion hearing, the district
judge referenced "an off-the-record conversation" it had with Greg Friedman, a
corrections officer, at some time prior to the hearing, stating:

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"And Mr. Friedman I think said that the incarceration or the requirements of the
parole revocation were going to be as stringent or more than Residential, and that was the
tradeoff of converting it to just Field Services when he was done with the parole
revocation, rather than do parole revocation and then place him in Residential and
confining him again. He just went straight to Field Services. But it starts upon completion
of the parole revocation. I'm not going to let him double dip when it's a consecutive
sentence."

Because Grossman completed his prior parole revocation sentence on October 24, 2008,
the district court concluded that his probation for the instant case should begin on the
same date.

Grossman filed a notice of appeal on December 24, 2008, but there is no evidence
in the record on appeal that he filed a motion to docket this appeal. On April 21, 2009,
the district court held a probation violation hearing after Grossman's intensive
supervision officer (ISO) filed two warrants indicating he violated his probation on 10
different occasions. After the district court informed Grossman of the alleged violations,
Grossman's attorney responded, "Your Honor, Mr. Grossman is prepared to admit those
allegations and make a presentation on mitigation in support of reinstatement." The
district court replied, "The defendant having waived his right to a formal hearing,
admitting to the allegations contained within both those warrants, the Court finds the
terms and conditions of his probation have been violated." Grossman's attorney did not
object to the court's statements.

When discussing possible mitigating circumstances for his probation violations,
Grossman's attorney admitted that Grossman "self-medicat[ed] through the use of
marijuana" and "became suicidal through a massive ingestion of amphetamines." Further,
when addressing allegations 1, 2, and 3 of the ISO's warrant, Grossman's attorney stated
that "Mr. Grossman admits to this, as I have already said." At the conclusion of the
hearing, the district court revoked Grossman's probation and ordered him to serve the
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balance of his 53-month sentence. The same day, Grossman filed a notice of appeal but
did not file a motion to docket the appeal until June 19, 2009. See City of Kansas City v.
Lopp, 269 Kan. 159, 160, 4 P.3d 592 (2000) (the district court loses jurisdiction over a
case upon the filing of a motion to docket the appeal with the Clerk of the Appellate
Courts).

On May 18, 2009, Grossman filed a motion with the district court claiming he
unintentionally waived his right to an evidentiary hearing and asking the district court to
reconsider his probation revocation. The district court denied the motion on May 29,
2009, citing a lack of jurisdiction because Grossman had already filed a notice of appeal
with this court. Grossman had filed his notice of appeal on April 21, 2009.

On appeal, Grossman argues the district court violated his due process rights when
it failed to determine whether he knowingly waived his right to an evidentiary hearing
and admitted to violating the conditions of his probation. Additionally, Grossman claims
the district court illegally modified the beginning date of his probation based on an "off-
the-record conversation" with his probation officer and unlawfully extended the length of
his probation. Finally, Grossman contends the district court abused its discretion by
revoking his probation and sentencing him to prison "just for a drug or alcohol addiction"
and his inability to pay for treatment without the required findings under K.S.A. 22-
3716(b).

DUE PROCESS

This court has unlimited review when determining whether the district court
complied with the requirements of due process during a probation revocation hearing.
See State v. Hall, 287 Kan. 139, 143, 195 P.3d 220 (2008).

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The Due Process Clause of the Fourteenth Amendment to the United States
Constitution imposes substantive and procedural due process requirements whenever the
State deprives someone of liberty, i.e., by revoking an individual's probation. State v.
Walker, 260 Kan. 803, 808-09, 926 P.2d 218 (1996). The United States Supreme Court in
Morrissey v. Brewer, 408 U.S. 471, 488, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972),
established minimum due process rights for parolees and extended those rights to
probationers in Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656
(1973).

"Minimum due process includes written notice of the claimed violations of probation,
disclosure to the probationer of the evidence against him or her, the opportunity to be
heard in person and to present evidence and witnesses, the right to confront and cross-
examine adverse witnesses, a neutral and detached hearing body, and a written statement
by the factfinder as to the evidence relied on and reasons for revoking probation. The
probationer also has a right to the assistance of counsel." State v. Billings, 30 Kan. App.
2d 236, 238, 39 P.3d 682 (2002) (citing Black v. Romano, 471 U.S. 606, 612, 105 S. Ct.
2254, 85 L. Ed. 2d 636 [1985]).

In Kansas, K.S.A. 22-3716(b) governs the procedure for probation revocation
hearings and satisfies "all constitutional requirements" as outlined in Gagnon. (Emphasis
added.) See State v. Rasler, 216 Kan. 292, 294-96, 532 P.2d 1077 (1975). According to
K.S.A. 22-3716(b):

"The [probation revocation] hearing shall be in open court and the state shall have the
burden of establishing the violation. The defendant shall have the right to be represented
by counsel and shall be informed by the judge that, if the defendant is financially unable
to obtain counsel, an attorney will be appointed to represent the defendant. The defendant
shall have the right to present the testimony of witnesses and other evidence on the
defendant's behalf. Relevant written statements made under oath may be admitted and
considered by the court along with other evidence presented at the hearing." (Emphasis
added.)
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Grossman claims on appeal that the district court violated his due process rights by
concluding he waived his right to an evidentiary hearing and stipulated to the probation
violations, without first determining whether he understood the consequences of the
admission. Further, he claims he never actually admitted to the probation violations; his
attorney merely stated that he was "prepared to admit" to the allegations.

Grossman's claims are without merit. First, Grossman cites no legal authority to
support his allegation that the "next step" after a defendant admits to violating the
conditions of his or her probation is for the court to question the defendant regarding the
consequences of the admission. See State v. Harned, 281 Kan. 1023, 1048, 135 P.3d
1169 (2006) (claims raised in passing without argument or citation to authority are
deemed waived).

Second, if the district court erred by interpreting the statements of Grossman's
attorney to be an admission and waiver of his right to an evidentiary hearing, neither
Grossman nor his attorney objected or attempted to correct the district court at any time.
See State v. Angelo, 287 Kan. 262, 280, 197 P.3d 337 (2008) (a litigant may not invite or
lead a district court into error and then complain of the district court's action on appeal).

When considering the probation revocation hearing as a whole, it is clear that
Grossman had the opportunity to be heard and to present evidence and witnesses. Instead,
Grossman, through his attorney, chose to freely admit his violations and argue for
reinstatement of his probation. Accordingly, the district court did not deny Grossman due
process by accepting his admissions as a knowing and voluntary waiver of his statutory
right to an evidentiary hearing.

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MODIFICATION OF THE TERMS OF PROBATION

Next, Grossman seems to argue that the revocation of his probation was illegal
because the district court lacked jurisdiction to modify the terms of his probation since
the modification occurred after "an off-the-record conversation" with his probation
officer. This reasoning appears to raise two separate arguments. First, the district court
lacked jurisdiction to modify Grossman's probation from community corrections
residential to field services and, therefore, it was an illegal sentence. Second, the district
court violated Grossman's due process rights by modifying and extending the duration of
his probation without a hearing and a finding of necessity as required under K.S.A. 21-
4611(c)(8).

An illegal sentence is a sentence that does not conform to the statutory provision
either in character or in the term of the punishment authorized, is imposed by a court
without jurisdiction, or is ambiguous as to the time and manner in which it is to be
served. State v. Hoge, 283 Kan. 219, 225, 150 P.3d 905 (2007). Whether a sentence is
illegal is a question of law over which an appellate court has unlimited review. State v.
Pennington, 288 Kan. 599, 601, 205 P.3d 741 (2009). Additionally, whether the
constitutional right to due process has been violated is a question of law over which an
appellate court has unlimited review. Hall, 287 Kan. at 143.

The State argues that this issue is not properly before the court because Grossman
failed to appeal within 10 days of the hearing to clarify the terms of his probation. This
argument is misplaced because any party can raise jurisdictional issues at any time. See
Vorhees v. Baltazar, 283 Kan. 389, 397, 153 P.3d 1227 (2007).

Nonetheless, probation is not a sentence, nor does it affect the sentence. State v.
Dubish, 236 Kan. 848, 851, 696 P.2d 969 (1985). Probation is

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"a procedure under which a defendant, found guilty of a crime upon verdict or plea, is
released by the court after imposition of sentence, without imprisonment except as
provided in felony cases, subject to conditions imposed by the court and subject to the
supervision of the probation service of the court or community corrections." (Emphasis
added.) K.S.A. 21-4602(c).

The district court sentenced Grossman on June 27, 2007, to an underlying 53
months in prison, with 24 months' postrelease supervision. Any subsequent modification
to the conditions of his probation did not affect his sentence in any way. Accordingly,
any argument alleging an illegal sentence based on the modification of probation is
without merit.

Next, Grossman argues that the district court violated his due process rights by
modifying the terms and length of his probation without a hearing and a finding of
necessity as required under K.S.A. 21-4611(c)(8).

Contrary to Grossman's argument, however, K.S.A. 21-4611(c) and its subsections
discuss the limitations imposed on a district court when deciding "the duration of
probation," not limitations when deciding the conditions of probation. Here, the district
court never modified the duration of Grossman's probation. According to the district
court's journal entry, it ordered probation "to run consecutively to any parole revocation."
At the hearing on the motion to clarify probation, the district court noted Grossman was
released from his parole revocation sentence on October 24, 2008. Thus, Grossman's 36-
month probation period began on October 24, 2008. Accordingly, the district court was
not required to hold a hearing and make a finding of necessity under K.S.A. 21-
4611(c)(8) because it never modified or extended the duration of his probation.

Research has failed to reveal a case that interprets K.S.A. 21-4610(b) as
specifically governing a district court's modification of the conditions of probation.
However, K.S.A. 21-4610(b) states that "[t]he court may at any time order the
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modification of such conditions, after notice to the court services officer or community
correctional services officer and an opportunity for such officer to be heard thereon."
(Emphasis added.) This language suggests the district court may modify the conditions of
a defendant's probation, as long as it provides the court services officer or community
correctional services officer with notice and an opportunity to be heard. See K.S.A. 21-
4610(b).

Here, the record reflects that the district court discussed the modification of
Grossman's probation from community corrections residential to field services with ISO
Friedman at some length before the hearing on the motion to clarify. The record also
indicates notice of the hearing was mailed to Grossman's ISO Shannon Bonebrake. Thus,
the district court provided all parties with notice and an opportunity to be heard as
required. Accordingly, the district court complied with the statute and did not deny
Grossman due process.

PROBATION REVOCATION

Finally, Grossman contends the district court abused its discretion by revoking his
probation without evidence that he violated the terms of his probation. After the State
establishes a probation violation by a preponderance of the evidence, the decision to
revoke probation is within the sound discretion of the district court. State v. Gumfory, 281
Kan. 1168, 1170, 135 P.3d 1191 (2006). A court abuses its discretion only when it makes
an error of law or when its action is arbitrary, fanciful, or unreasonable. If reasonable
persons could differ as to the propriety of the action taken by the district court, the district
court did not abuse its discretion. See State v. Gary, 282 Kan. 232, 235-36, 144 P.3d 634
(2006).

An appellate court may also find that a district court abuses its discretion if the
district court's decision goes outside the framework of the statute or fails to properly
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consider statutory limitations or legal standards. State v. Woodward, 288 Kan. 297, 299,
202 P.3d 15 (2009).

Grossman takes issue with the district court's decision to revoke his probation
based, in part, on his failure to comply with the financial conditions of his probation
without first determining whether he willfully refused or was responsible for the failure
to pay or whether he made a bona fide effort to acquire the resources to pay.

Under Bearden v. Georgia, 461 U.S. 660, 672-74, 103 S. Ct. 2064, 76 L. Ed. 2d
221 (1983), a district court must inquire into the reasons for an indigent probationer's
failure to comply with the financial conditions of his or her probation before
automatically revoking probation and imposing imprisonment without considering
alternatives to satisfy the requirements of substantive due process. See State v. White, 41
Kan. App. 2d 943, 947-48, 206 P.3d 553 (2009).

However, under the facts of this case, Grossman admitted to violating 10
conditions of his probation, including testing positive for cannabinoids on four occasions
and failing to report to his ISO on two different occasions. Clearly, there were alternate
grounds to support the district court's actions beyond mere nonpayment of program fees
and court costs. The district court did not abuse its discretion in revoking Grossman's
probation.

Finally, Grossman claims the district court abused its discretion by failing to
follow K.S.A. 22-3716(b)'s legislative mandate that a district court must first assign a
probation violator to community corrections before being ordered to serve his or her
underlying sentence. K.S.A. 22-3716(b) provides several exceptions to the above rule:

"(1) when the violation in question is a new misdemeanor or felony; (2) for certain adult
felony offenders as described in K.S.A. 2004 Supp. 75-5291(a)(3); and (3) 'if the court
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finds and sets forth with particularity the reasons for finding that the safety of the
members of the public will be jeopardized or that the welfare of the inmate will not be
served by such assignment to a community correctional services program.'" State v.
Banning, 34 Kan. App. 2d 783, 787, 125 P.3d 573 (2005), rev. denied 281 Kan. 1379
(2006).

Grossman's argument also fails based on the plain language of the statute, which
provides another exception. Under K.S.A. 22-3716(b), the district court is only required
to assign a probation violator to community corrections before being ordered to serve his
or her underlying sentence when the defendant has not already had a "prior assignment to
a community correctional services program." Here, the district court granted Grossman
probation on the condition that he attend a community corrections program for 36
months. However, Grossman violated the conditions of his probation, and the district
court ordered him to serve his original 53-month sentence.

The district court was not required to make particularized findings indicating that
the safety of the public would be jeopardized or that Grossman's own welfare would not
be served by a second, subsequent assignment to community corrections before ordering
him to serve his underlying prison sentence. Accordingly, the district court did not abuse
its discretion in revoking Grossman's probation and ordering him to serve his original 53-
month sentence.

Affirmed.