State v. Brown

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NOT DESIGNATED FOR PUBLICATION

Nos. 117,794
117,795


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROBERT D. BROWN,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; WILLIAM S. WOOLLEY, judge. Opinion filed August 24,
2018. Reversed and remanded with directions.

Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before ARNOLD-BURGER, C.J., ATCHESON, J., and LORI BOLTON FLEMING, District
Judge, assigned.

PER CURIAM: Defendant Robert D. Brown appeals the orders of the Sedgwick
County District Court revoking his probation in two cases and directing that he serve the
underlying prison sentences. The district court bypassed any intermediate sanctions for
the probation violations on the grounds they would be detrimental to the public safety and
would not foster Brown's long-term welfare. But the district court failed to "set forth with
particularity the reasons" for its conclusion, as required in K.S.A. 2017 Supp. 22-
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3716(c)(9)(A). We, therefore, reverse and remand with directions that the district court
either enunciate particularized reasons for revoking probation or reinstate Brown and
impose intermediate sanctions.

We briefly outline the factual and procedural history leading to the probation
revocation. Brown forced his way into a neighbor's house in early August 2016. He took
some food and apparently struck a child with the front door as he entered. Brown was
charged with aggravated burglary, misdemeanor theft, and misdemeanor battery several
days later and was quickly arrested. While being held in the Sedgwick County jail as a
pretrial detainee, Brown made threatening statements to a jailer. Brown was charged with
felony criminal threat.

Brown's lawyer and the State worked out an agreement calling for Brown to plead
guilty to the aggravated burglary and the criminal threat charges with a joint
recommendation for the high presumptive guidelines sentences to be served
consecutively and for a dispositional departure to probation. Brown had a criminal
history score of A, as the result of several convictions for violent felonies including
second-degree murder. Brown pleaded guilty in late January 2017, and the district court
sentenced him in early March. Consistent with the plea agreement, the district court
sentenced Brown to a 172-month prison term for the aggravated burglary conviction with
probation for 36 months and a consecutive 17-month prison term for the criminal threat
conviction with probation for 12 months.

During the plea and sentencing process, Brown's lawyer informed the prosecutor
and the district court that Brown had a chronic substance abuse problem. She provided
the prosecutor with hospital records showing Brown had PCP and marijuana in his
system not long before the aggravated burglary.

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In April 2017, the State filed a warrant to revoke Brown's probation, citing his
failure to participate in substance abuse treatment and his positive test for PCP and
marijuana, among other grounds. Brown was promptly taken into custody, and the district
court held a joint revocation hearing on April 20 for both cases.

At the hearing, Brown stipulated to the violations and requested another chance on
probation. The prosecutor argued against continuing Brown's probation, given his
extensive criminal history, the crimes of conviction, and the admitted violations. The
district court rejected intermediate sanctions for the probation violations, revoked
probation, and ordered Brown to serve the prison sentences in both cases. The district
court relied on K.S.A. 2017 Supp. 22-3716(c)(9)(A) to dispense with any sanctions. The
statute permits a district court to bypass an intermediate sanction in favor of revocation
and incarceration on any underlying prison sentence if it "finds and sets forth with
particularity the reasons . . . the safety of members of the public will be jeopardized or
that the welfare of the offender will not be served by such sanction." (Emphasis added.)
K.S.A. 2017 Supp. 22-3716(c)(9)(A). The district court explained its decision to revoke
this way:

"Essentially for this particular defendant, given his criminal history, using PCP is beyond
what the Court—what the legislature considered and puts the defendant at risk and puts
the public at risk.
"All right. So with that being said, number one, the Court agrees with Mr.
Glasser, that given the defendant's criminal history, given the nature of the crimes in this
case, given the probation violations with the use of the PCP, independently of the plea
agreement, that the safety of the members of the public will be jeopardized or the welfare
of the defendant would not otherwise be served by keeping him on probation."

Brown appealed in each case, and we have consolidated the appeals.

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When a defendant stipulates to probation violations, as Brown has in these cases,
we review the district court's disposition of the violations for abuse of judicial discretion.
State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). A district court exceeds that
discretion if it rules in a way no reasonable judicial officer would under the
circumstances, if it ignores controlling facts or relies on unproven factual representations,
or if it acts outside the legal framework appropriate to the issue. See Northern Natural
Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013); State
v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011).

As required by K.S.A. 2017 Supp. 22-3716(c)(9)(A), the district court had an
obligation to make particularized findings discarding any intermediate sanction and
warranting the revocation of Brown's probation. Whether findings satisfy that statutory
requirement is a question of law affording appellate courts unfettered latitude in
fashioning an answer. See State v. McFeeters, 52 Kan. App. 2d 45, 49, 362 P.3d 603
(2015). We have characterized that sort of particularity as demanding a pronouncement
that "must be distinct rather than general, with exactitude of detail, especially in
description or stated with attention to or concern with details." State v. Huskey, 17 Kan.
App. 2d 237, Syl. ¶ 2, 834 P.2d 1371 (1992). Implicit findings—however reasonable they
might be in a given case—cannot hone otherwise general statements to the sharpness
required when a statute demands particularity. State v. Miller, 32 Kan. App. 2d 1099,
1103, 95 P.3d 127 (2004).

The district court found that Brown had used PCP—he admitted testing positive
for the drug and didn't dispute the test results. But that alone didn't explain with
particularity why an intermediate sanction would impinge on public safety or fail to serve
Brown's welfare. The district court's generic references to Brown's criminal history and
the "nature" of his convictions in these cases don't add any specificity. As they stand,
those comments could be made in virtually any revocation hearing. The district court said
nothing about what in particular in Brown's criminal history or in the circumstances of
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the aggravated burglary or the criminal threat justified a bypass of an otherwise mandated
intermediate sanction. The district court's failure to do so amounts to a deviation from the
appropriate legal framework and, thus, an abuse of discretion. The error requires a
remand to the district court.

Having reviewed the record, including Brown's criminal history, we likely could
construct a particularized argument supporting revocation and incarceration over
intermediate sanctions. We probably could make a decent argument for sanctions, as
well. But either course would be the antithesis of an abuse of discretion standard, since
we would be substituting our judgment for the insufficiently articulated judgment of the
district court. District courts are expected to exercise their prudential decision-making on
sentencing matters, including probation revocations, in the first instance.

We mention briefly arguments Brown has raised on appeal apart from the lack of
particularity of the district court's findings on revocation and incarceration. He contends
the prosecutor erred in referring to his use of PCP around the time of the aggravated
burglary because the hospital records had not been offered or admitted as an exhibit at the
revocation hearing and there was no other evidence presented to that effect. At the
hearing, Brown's lawyer acknowledged Brown's use of PCP in 2016. The lawyer, of
course, had already provided that information to the prosecutor. Defense counsel had
urged the district court to grant probation to Brown despite his significant criminal
history, citing his ongoing abuse of illegal drugs and alcohol as a substantial mitigating
factor. We see no prosecutorial error under those circumstances.

Along the same line, Brown contends the district court impermissibly relied on his
use of PCP in 2016 in deciding to revoke his probation. First, the district court's reference
to Brown's PCP use is inscrutable in that respect. The comment could refer only to the
drug test result identified in the warrant to revoke—a violation Brown admitted at the
hearing. But maybe not. That lack of clarity is part of the problem with the district court's
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findings. Even if the district court meant to include Brown's earlier PCP use, we don't see
an error here. Brown's lawyer didn't dispute the point and, in candor, could not. Pertinent
here, a defendant's persistent use of PCP could be a specific consideration weighing
against an intermediate sanction if it were appropriately incorporated into a particularized
rationale based on public safety or the defendant's welfare.

Brown also challenges a provision in the plea agreement waiving any intermediate
sanctions if he admits a probation violation or is found to be a violator. The district court
noted but did not rely on that provision in revoking Brown's probation and imposing the
prison sentences. Although we have doubts about the validity of the agreement, we need
not decide the issue, since the district court disclaimed the provision as a factor in its
ruling. The Legislature adopted the intermediate sanctions in part to limit the State's
prison population and not merely to give convicted criminals on probation a break, so
public policy considerations may counsel against a defendant's ability to waive the
requirements of K.S.A. 2017 Supp. 22-3716. But that really is another question for
another day.

We reverse the revocation of Brown's probation and remand to the district court
with directions that it either make the particularized findings required under K.S.A. 2017
Supp. 22-3716(c)(9)(A) to justify revoking and imprisoning Brown or impose a
permissible intermediate statutory sanction.