State v. Cozo

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NOT DESIGNATED FOR PUBLICATION

No. 119,865


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BOBBY L. COZO,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DAVID J. KAUFMAN, judge. Opinion filed August 30,
2019. Reversed and remanded with directions.

Christina M. Kerls, 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 STANDRIDGE, P.J., PIERRON and ATCHESON, JJ.

ATCHESON, J.: Defendant Bobby Cozo failed to report to the probation office after
the Sedgwick County District Court sentenced him for two felonies and ordered his
release from the jail. In a hearing on the probation violation, the district court incorrectly
found Cozo to be an absconder and in doing so deviated from the holding in State v.
Huckey, 51 Kan. App. 2d 451, 348 P.3d 997 (2015), that absconding entails subterfuge
beyond simply not reporting as required. We, therefore, reverse the district court's order
revoking Cozo's probation and remand for further proceedings.
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Cozo pleaded guilty to burglary and theft, both felonies, and the district court later
sentenced him to consecutive terms of imprisonment totaling 33 months on those
convictions. The district court placed him on probation for 24 months. Cozo, who had
been detained on those charges, was released from the county jail on December 1, 2017.
Contrary to the district court's instructions at the sentencing hearing, Cozo didn't report to
the probation office that day and never showed up. The district court issued a warrant for
Cozo's arrest about two weeks later for failing to report as directed for probation.

Cozo was arrested on June 6, 2018, and the district court promptly issued a second
warrant alleging probation violations based on Cozo's commission of new crimes. Cozo
requested an evidentiary hearing on the allegations in both of the warrants. The district
court continued the matter and a week later issued a third warrant alleging Cozo failed to
report for probation in December 2017 and had absconded. The district court withdrew
the two earlier warrants.

At an evidentiary hearing on the third warrant in July 2018, the State called the
probation officer assigned to handle Cozo's intake and processing for probation the
previous December. After Cozo failed to report, the probation officer testified that he
obtained a telephone number Cozo had provided in the underlying criminal case. The
probation officer testified he called the number on two consecutive days in early
December and got a recording each time that the number was not in service. The
probation officer testified that he did nothing else to contact or locate Cozo. He said he
would have sent a letter to Cozo if he had found an address. The probation officer
acknowledged having a copy of the presentence investigation report on Cozo; the report
lists a residence address for Cozo. The State submitted no other evidence at the probation
revocation hearing. Cozo did not testify or offer any evidence.

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The district court found that Cozo had absconded and relied on that as the legal
basis to revoke his probation and to send him to prison without imposing an intermediate
sanction under K.S.A. 2018 Supp. 22-3716(c). Cozo has appealed.

Probation is an act of judicial leniency afforded a defendant as a privilege rather
than a right. See State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). A district court's
decision to revoke probation usually involves two steps: (1) a factual determination that
the probationer has violated a condition of probation; and (2) a discretionary
determination as to the appropriate disposition in light of the proved violations. State v.
Skolaut, 286 Kan. 219, Syl. ¶ 4, 182 P.3d 1231 (2008). The State has to prove a violation
by a preponderance of the evidence. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d
1191 (2006); State v. Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d 844 (2007). After a
violation has been established, the decision to continue probation or to revoke and
incarcerate the probationer rests within the sound discretion of the district court. See
Skolaut, 286 Kan. at 227-28. Judicial discretion has been abused if a decision is arbitrary,
fanciful, or wholly unreasonable or rests on a substantive error of law or a material
mistake of fact. State v. Cameron, 300 Kan. 384, 391, 329 P.3d 1158 (2014). Cozo
carries the burden of showing that the district court abused its discretion. See State v.
Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).

K.S.A. 2018 Supp. 22-3716(c) generally requires a district court to impose a
sanction short of revocation and incarceration for a defendant's first violation of the terms
and conditions of probation. The statute, however, includes exceptions permitting a
district court to bypass the lesser sanctions. Pertinent here, a district court could
immediately revoke probation "[i]f the offender absconds from supervision." K.S.A. 2018
Supp. 22-3716(c)(8)(B). The statute does not define absconding.

This court filled that definitional void in Huckey, holding that within the probation
scheme outlined in K.S.A. 2014 Supp. 22-3716, absconding entails more than simply
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failing to report as required. 51 Kan. App. 2d at 457. Rather, the probationer must have
"fled or hidden himself or deliberately acted to avoid arrest, prosecution, or service of
process." 51 Kan. App. 2d at 458. That standard reflects the well-recognized meaning of
the word "abscond." Black's Law Dictionary 8 (10th ed. 2014) (definition of "abscond");
Webster's New World College Dictionary 5 (5th ed. 2016) (defining "abscond" as "[to]
run away and hide, esp. in order to escape the law"). In short, a defendant's failure to
report as directed for probation does not make him or her an absconder. 51 Kan. App. 2d
at 455 ("[T]o show [a probationer] has absconded there must be evidence that [the
probationer] did something more than fail to report.").

In considering Cozo's situation, the district court characterized Huckey as
"obviously a defense-oriented ruling" and found it "baffling" that a person "who just
doesn't report" cannot be considered an absconder. To escape Huckey, the district court
suggested that a defendant who fails to report in the first instance has done something
more than fail to report. But that rationalizing ignores both the plain meaning of the term
"abscond" and our duty to apply statutes in conformity with the plain meaning of the
words the Legislature has chosen to express its intent. See State v. Keel, 302 Kan. 560,
572, 357 P.3d 251 (2015). Although the Legislature has from time to time revised the
scheme in K.S.A. 2018 Supp. 22-3716(c) for sanctioning probation violations, it has not
modified the absconder exception in the four years since Huckey was published. Had the
Legislature wanted something different, it could have amended the statute to allow a
district court to revoke the probation of a defendant who fails to initially report or who
fails to report for more than 30 days. But the Legislature hasn't done so.

More to the point, as a published opinion, Huckey is precedential authority binding
on district courts. And its holding is clear: absconding requires something more than
failing to report. Much as a district court may find Huckey disappointing, disagreeable, or
even dunderheaded, that affords no license to simply disregard that holding or to contrive
a distinction without a difference to distinguish it.
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Here, the State established no more than Cozo failed to report for probation. There
was no evidence Cozo fled the jurisdiction or otherwise actively sought to evade
detection within the jurisdiction. To be sure, Cozo hasn't compiled a laudatory history, at
least as portrayed in the record. He has racked up multiple felony and misdemeanor
convictions in three states. In this case, he stole musical equipment from a local church.
And while he was on bond, he failed to appear. But those circumstances do not alter the
legal standards governing Cozo's probation.

The State failed to prove Cozo absconded. The evidence established a probation
violation for failing to report. So the district court abused its discretion by acting outside
the legal framework of K.S.A. 2018 Supp. 22-3716(c) in declaring Cozo to be an
absconder and then revoking his probation and ordering him to serve his prison sentence
for that reason. We, therefore, reverse the revocation of Cozo's probation. We remand
with directions the district court reinstate the probation and then undertake any further
proceedings that may be appropriate based on Cozo's present circumstances, including
his proved violation for failing to report in December 2017.

Reversed and remanded with directions.