State v. Braswell

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NOT DESIGNATED FOR PUBLICATION

No. 115,549

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BRODERICK W. BRASWELL,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed April 7, 2017.
Affirmed.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., MALONE and GARDNER, JJ.

Per Curiam: Broderick W. Braswell appeals the district court's decision revoking
his probation and ordering him to serve a modified prison sentence. The only claim
Braswell makes on appeal is that the district court lacked jurisdiction to revoke his
probation because of the State's unreasonable delay in prosecuting his probation
violation. For the reasons stated herein, we reject Braswell's claim and affirm the district
court's judgment.



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FACTUAL AND PROCEDURAL BACKGROUND

On March 22, 2010, Braswell pled guilty in Wyandotte district court to eluding a
police officer, a severity level 9 person felony, and leaving the scene of an injury
accident, a class A misdemeanor. On June 15, 2010, the district court sentenced Braswell
to 15 months' imprisonment for the felony conviction and a consecutive term of 12
months in jail for the misdemeanor conviction. The district court placed Braswell on
probation for 12 months to be supervised by community corrections. As conditions of his
probation, Braswell was ordered to report to his intensive supervision officer (ISO) as
instructed and to notify his ISO before changing his address or phone number.

On January 7, 2011, the State filed a motion to revoke Braswell's probation. The
State alleged that Braswell failed to maintain contact with his ISO, failed to submit to
UAs, failed to notify his ISO of any change in address, and failed to pay his court costs.
The State indicated it had made the following unsuccessful efforts to contact Braswell:
(1) On September 20, 2010, the ISO sent a letter to Braswell's last known address; (2) on
December 9, 2010, the ISO attempted a home visit to Braswell's last known address; and
(3) on December 15, 2010, the ISO sent another letter to Braswell's last known address.
Based on the motion, the district court granted a bench warrant for Braswell's arrest.

On March 21, 2013, Braswell filed a motion with the district court for the
appointment of counsel. In the motion, Braswell stated that he was in federal custody and
serving a 60-month sentence in the Leavenworth Federal Penitentiary for felony
convictions of possession of a firearm and attempted distribution of a controlled
substance. Braswell stipulated that these new convictions were violations of his probation
and asked the district court to hold a probation revocation hearing. Braswell wanted his
underlying sentence in state court to run concurrently with his federal sentence.

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The district court responded in a letter to Braswell informing him that Kansas law
does not provide a mechanism to bring someone from federal prison to deal with a
probation violation. The letter explained that Kansas law only permits a prisoner to be
brought to Kansas from federal prison to adjudicate an untried information or complaint.
Thus, the district court denied Braswell's request for a probation revocation hearing.

On November 13, 2015, the State filed an amended motion to revoke Braswell's
probation based on his federal crimes. On November 20, 2015, after Braswell had
completed his federal sentence, the district court held a probation revocation hearing.
Braswell appeared in person and was represented by counsel. Braswell did not contest the
alleged probation violation, but he argued that the district court lacked jurisdiction to
revoke his probation because of the State's delay in prosecuting his probation violation.
The district court rejected Braswell's argument, finding there had been no mechanism to
bring Braswell back from federal prison any sooner to address a probation violation. The
district court revoked Braswell's probation and ordered him to serve a modified sentence
of 15 months' imprisonment by ordering that his sentences on the two counts run
concurrently. Braswell timely appealed the district court's judgment.

DID THE DISTRICT COURT LACK JURISDICTION TO REVOKE BRASWELL'S PROBATION?

On appeal, Braswell contends that the district court lacked jurisdiction to revoke
his probation because of the State's unreasonable delay in prosecuting his probation
violations. Specifically, Braswell argues that the State's delay in prosecuting his
probation violations "violated his rights under the Due Process Clause of the Fourteenth
Amendment to the United States Constitution and § 18 of the Kansas Constitution Bill of
Rights, which guaranteed him 'justice without delay.'" The State asserts that Braswell is
attempting to raise a new issue on appeal that was not raised in district court. On the
merits, the State argues that the district court properly revoked Braswell's probation.

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Whether a district court has jurisdiction over a probation revocation proceeding is
a question of law subject to unlimited appellate review. State v. Hall, 287 Kan. 139, 143,
195 P.3d 220 (2008). Moreover, an appellate court has unlimited review over whether a
due process violation has occurred. 287 Kan. at 143.

Generally, an issue not raised in district court cannot be raised on appeal. State v.
Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). Here, the record reflects that after the
district court revoked Braswell's probation and imposed a modified sentence at the
probation revocation hearing, Braswell—without assistance from his attorney—asked the
district court to reconsider because of the State's delay in prosecuting his probation
violation. Braswell cited this court's decision in State v. Curtis, 42 Kan. App. 2d 132, 209
P.3d 753 (2009), to support his request. The district court told Braswell that Curtis did
not apply to him because under Kansas law, a defendant held in federal custody cannot be
brought to state court to address a probation violation. The district court told Braswell
that if he disagreed, he could appeal the district court's decision. While Braswell did not
precisely frame his argument in district court as a jurisdictional or due process issue, he
sufficiently raised the argument below to preserve it for appellate review. Moreover, as
Braswell points out on appeal, issues of jurisdiction can be raised at any time. State v.
Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010).

Turning to the merits of Braswell's claim, Kansas law provides that once probation
has been granted to a defendant, he or she acquires a conditional liberty interest, which is
subject to substantive and procedural due process limitations on its revocation. State v.
Hurley, 303 Kan. 575, 581, 363 P.3d 1095 (2016). As explained by this court in Curtis:

"The Due Process Clause of the Fourteenth Amendment to the United States
Constitution imposes procedural and substantive requirements when the State deprives
someone of liberty, such as through the revocation of the individual's probation. The
failure to act in a timely and reasonable manner to pursue the adjudication of a probation
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violation violates the Due Process Clause and divests the district court of jurisdiction to
revoke probation." 42 Kan. App. 2d 132, Syl. ¶ 2.

Under Kansas law, there are two ways for a defendant to establish a due process
violation because of the State's delay in prosecuting a probation violation. First, the
defendant can show that the State waived its right to prosecute the violation, in which
case the defendant does not need to show prejudice. 42 Kan. App. 2d at 139. Second, the
defendant can establish that the delay was unreasonable because it prejudiced the
defendant. 42 Kan. App. 2d at 139. Braswell claims that he prevails under either method.

Did the State waive its right to prosecute Braswell's probation violation?

Braswell claims that the 4-year delay between the State's motion to revoke his
probation and his probation revocation hearing was unreasonable. Braswell concedes that
the State made "some efforts" to prosecute the probation violation when it first occurred
in 2011, but he points to the fact that the record is devoid of any attempts to locate him
through his driving record, social security number, or employer. Moreover, even after the
State became aware that Braswell was incarcerated at Leavenworth, the State did not
respond to Braswell's request to resolve the probation issue, nor is there any evidence in
the record that the State filed a detainer. Thus, Braswell claims, the State impliedly
waived its right to prosecute Braswell's probation violation, and the district court was
without jurisdiction to revoke probation and impose Braswell's underlying sentence.

The State argues that it undertook reasonable efforts to locate Braswell. The State
asserts that although there is no "specific evidence" of a detainer in the record, there is
indirect evidence that the State did in fact lodge a detainer against Braswell. Furthermore,
the State argues, because Braswell was incarcerated in federal prison, the State could not
have prosecuted Braswell's probation violation any sooner because the Agreement on
Detainers does not permit the State of Kansas to bring back a defendant incarcerated in
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other jurisdictions, including federal prison, for a probation violation hearing. Thus, the
State asserts that it took reasonable efforts to locate and bring back Braswell for the
revocation motion, and it did not waive its right to prosecute the probation violation.

When determining whether the State has waived its right to prosecute a probation
revocation, courts necessarily must consider the State's conduct to determine whether
such conduct reflects (1) reasonable diligence in pursuing revocation or (2) unreasonable
inaction in pursuing revocation, indicating implied waiver. Curtis, 42 Kan. App. 2d at
143. Whether the State's delay was reasonable depends upon the facts of each case. Hall,
287 Kan. at 145.

Braswell relies on this court's decision in Curtis to support his argument that the
State waived its right to prosecute his probation violation. In Curtis, this court examined
whether the State waived its right to prosecute a probation violation where there was a
616-day delay between the probation violation and the adjudication of the violation. This
court utilized a modified version of the speedy trial test in Barker v. Wingo, 407 U.S.
514, 530, 92 S. Ct. 2128, 33 L. Ed. 2d 101 (1972), to determine whether the State
exercised reasonable diligence in adjudicating the defendant's probation violation. 42
Kan. App. 2d at 143-44. Specifically, this court considered the length of the delay, the
reason for the delay, and whether the defendant asserted his right to a timely adjudication.
42 Kan. App. 2d at 144. Ultimately, this court ruled that the State's delay constituted a
violation of the defendant's due process rights because the State had no reasonable
explanation for 393 days of the 616-day delay, and the defendant had filed two motions
to dismiss because of the long delay. 42 Kan. App. 2d at 147.

Braswell's case is distinguishable from Curtis primarily because Braswell was
incarcerated in federal prison during the period of time that the motion to revoke his
probation in state court was pending. Unlike the situation in Curtis, the State knew where
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Braswell was located but claims it could not adjudicate his probation violation any sooner
because Braswell was serving a 60-month sentence in federal prison.

The Kansas Supreme Court addressed whether the failure to serve a probation
revocation warrant on a probationer incarcerated in a different county constituted a
waiver of the State's right to prosecute the probation violation in Hall. In that case, the
defendant was convicted and granted probation in McPherson County. He subsequently
committed a crime in Saline County, was convicted, and was sent to state prison as a
result of the new conviction. 287 Kan. at 140. Based on the defendant's new conviction,
the State filed a probation violation warrant against the defendant in the McPherson
County case. The State made no effort to execute the warrant, but it "apparently lodged a
detainer with prison officials who had custody of [the defendant] under the authority of
the Saline County sentence." 287 Kan. at 140. The warrant was not served on the
defendant until 6 years later when he was released from prison. 287 Kan. at 140. At the
probation revocation hearing, the district court revoked the defendant's probation and
imposed his underlying sentence. 287 Kan. at 142.

On appeal, the Kansas Supreme Court noted that there was no direct evidence in
the record reflecting that the State had lodged a detainer with prison officials concerning
the defendant's probation violation. Nevertheless, the court accepted the fact that a
detainer had been lodged against the defendant because the record contained "indirect
references to the detainer," including a letter from the defendant asking for appointment
of counsel to resolve the pending probation revocation motion. 287 Kan. at 140-41. The
court ultimately concluded that the State did not waive the right to prosecute the
defendant's probation violation by failing to execute the warrant while the defendant was
serving a sentence for an unrelated conviction from another county. 287 Kan. at 153.
Specifically, the court held:

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"[I]f an alleged probation violator is incarcerated as a result of a new felony conviction
arising in another county, the State does not waive a probation violation if it lodges a
detainer but does not execute a probation violation warrant while the alleged violator is
imprisoned on a consecutive sentence." 287 Kan. at 153.

Hall stands for the proposition that the filing of a detainer against a defendant
being held in state prison is sufficient to prevent the State's waiver of its right to
prosecute a probation violation. Thus, if the State did in fact lodge a detainer against
Braswell, under Hall, the State did not waive its right to prosecute the probation
violation, and the district court had jurisdiction to revoke Braswell's probation and order
that he serve his underlying sentence.

Here, however, the parties dispute whether the State lodged a detainer against
Braswell, and Braswell points to the fact that there is no detainer included in the record
on appeal. But as in Hall, the record herein includes indirect evidence supporting a
conclusion that a detainer was in fact lodged against Braswell. Braswell filed a motion to
appoint counsel on March 21, 2013, acknowledging that he violated his probation by
committing new crimes and requesting the adjudication of his probation violation in
Wyandotte County. In the letter, Braswell specifically states that "[c]ertain programs for
rehabilitation and halfway house are not available to the Defendant because of the
outstanding case in this Honorable Court." Just as in Hall, these facts support the
existence of a detainer because they explain how Braswell came to be aware of the
proceedings against him in Wyandotte County.

Nonetheless, even if the State failed to lodge a detainer against Braswell, this
situation is distinguishable from Hall because Braswell was incarcerated in federal
prison. As noted by the district court, if a prisoner is incarcerated in another county in
Kansas, the Uniform Mandatory Disposition of Detainers Act (UMDDA) applies, and the
defendant may request final disposition of any "untried indictment, information, motion
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to revoke probation or complaint pending against such person in this state." K.S.A. 2016
Supp. 22-4301(a). Thus, if Braswell had been in a Kansas prison, the State could have
adjudicated his probation violation because he could have been transported to Wyandotte
County for a probation violation hearing.

If, however, a prisoner is incarcerated in another state or in federal prison, the
Agreement on Detainers applies, and the prisoner can only request final disposition of an
untried information, indictment, or complaint. K.S.A. 22-4401; see also State v. Waldrup,
46 Kan. App. 2d 656, 669-70, 263 P.3d 867 (2011) (explaining that the UMDDA applies
to inmates confined in a penal or correctional institution in the State of Kansas, while the
Agreement on Detainers applies to inmates confined in penal or correctional institutions
in another state or in a federal penitentiary). Because Braswell was in federal prison,
there was no mechanism for the adjudication of his probation violation until he
completed his federal sentence. See K.S.A. 22-4401.

Here, the State acted with reasonable diligence in prosecuting Braswell's probation
violation. The State made reasonable efforts to locate Braswell when the motion to
revoke probation initially was filed. Once the State determined that Braswell was
incarcerated in federal prison, it appears that the State lodged a detainer to hold Braswell
for the probation violation. But even if the State failed to lodge a detainer, Braswell was
incarcerated in federal prison and subject to the Agreement on Detainers, which provided
no mechanism for adjudicating his probation violation matter until he completed his
federal sentence. Once Braswell completed his federal sentence, he immediately was
returned to Wyandotte County for his probation revocation hearing. Under the facts and
circumstances of this case, we conclude that the State did not waive its right to prosecute
Braswell's probation violation.



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Did the delay prejudice Braswell?

Braswell next argues that even if the State did not waive its right to prosecute his
probation violation, the delay prejudiced him and violated his due process rights.
Braswell first claims that the State's delay prejudiced him because it deprived him of the
possibility of serving his state sentences concurrently with his federal sentence. Second,
Braswell claims that he was prejudiced by the delay because he was denied participation
in certain federal prison programs. Third, Braswell claims that he was prejudiced by the
anxiety that resulted from not knowing how his case would be resolved. Finally, Braswell
claims that he was prejudiced by the State's delay because it impaired his ability to
present mitigating evidence. The State does not address Braswell's prejudice argument.

Braswell first claims that the State's delay prejudiced him because it deprived him
of the possibility of serving his state sentences concurrently with his federal sentence.
Our Supreme Court rejected this argument in Hall and held that the loss of the possibility
of serving sentences concurrently is not prejudicial to the defendant. 287 Kan. at 155.
Braswell attempts to distinguish his case from Hall by pointing out that the holding in
that case only applies to felony sentences and Braswell also was serving a misdemeanor
sentence. However, any such distinction is irrelevant because the district court ultimately
modified Braswell's sentences and ordered that his sentence for his misdemeanor
conviction run concurrently with his sentence for his felony conviction.

Braswell next claims he was prejudiced by the delay because he was denied
participation in certain federal prison programs. But as our Supreme Court stated in Hall,
there is no liberty interest in participation in federal prison programs because corrections
officials "have discretion in determining what programs will be available and who will
qualify for those programs." 287 Kan. at 154. Because Braswell had no liberty interest in
participating in prison programs, he cannot claim his due process rights were violated.

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Braswell also claims that he was prejudiced by the anxiety that resulted from not
knowing how his case would be resolved. Again, our Supreme Court in Hall rejected this
argument because "'[a] defendant incarcerated for a reason other than the delay in the
hearings cannot properly attribute his anxiety at being incarcerated—or the prejudice it
implies—to the hearing delays.' [Citation omitted.]" 287 Kan. at 154-55.

Finally, Braswell claims that he was prejudiced by the State's delay because it
impaired his ability to present mitigating evidence at his probation revocation hearing.
However, Braswell admits that he cannot point to any actual loss of evidence caused by
the delay in his probation revocation proceedings. Thus, the record does not support
Braswell's claim of prejudice on this ground. Moreover, we note that the district court
apparently recognized some mitigating circumstances when it modified Braswell's
sentences on the two counts by ordering that they run concurrently.

In sum, the State did not waive its right to prosecute Braswell's probation
violation, and Braswell is unable to show any prejudice caused by the delay. Thus, we
conclude that Braswell did not suffer any due process violation, and the district court did
not lose jurisdiction to revoke Braswell's probation.

Affirmed.