State v. Hopkins

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NOT DESIGNATED FOR PUBLICATION

No. 114,641

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DEANDRE HOPKINS,
Appellant.

MEMORANDUM OPINION

Appeal from Ellis District Court; EDWARD BOUKER, judge. Opinion filed November 4, 2016.
Affirmed.

Peter Maharry, of Kansas Appellate Defender Officer, for appellant.

Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for
appellee.

Before MCANANY, P.J., PIERRON, J., and BURGESS, S.J.

Per Curiam: Following his drug conviction, Deandre Hopkins was granted
probation by the district court in Ellis County. After several probation violations,
Hopkins left the area and went to Arkansas without telling his probation officer. A month
later Hopkins called his probation officer from Kansas City, Missouri, but failed to return
to Ellis County. He continued to be at large until he was arrested a year later in
Lawrence. At the probation revocation hearing that followed, the district court found
Hopkins had absconded and, therefore, did not need to consider an intermediate sanction.
The district court sent Hopkins to serve a modified 18-month prison sentence. On appeal,
Hopkins claims the district court erred in finding he had absconded and in revoking his
probation without first ordering an intermediate sanction. We conclude that Hopkins'
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conduct constituted absconding and, therefore, the district court did not err in bypassing
an intermediate sanction and sending Hopkins to prison.

Hopkins' conviction began with a traffic stop during which Hopkins gave the
arresting officer false identification information and the arresting officer found a glass
pipe which tested positive for the presence of marijuana. The State charged Hopkins with
felony possession of marijuana, misdemeanor interference with law enforcement, and
possession of drug paraphernalia. Pursuant to a plea agreement, Hopkins pled guilty to
possession of marijuana. In exchange, the State dismissed the other charges and agreed to
recommend probation. The district court followed the plea agreement and sentenced
Hopkins to probation for 18 months with an underlying prison sentence of 34 months.

Over the next few months, Hopkins violated several conditions of his probation.
He tested positively for opiates and cannabinoids. He admitted using hydrocodone. When
Hopkins failed to report to his probation officer, his probation officer was unsuccessful in
trying to reach him. The next day Hopkins called his probation officer and apologized for
missing his appointment. Hopkins said he was in Arkansas because his grandfather died
and his mother was "not doing well." He asked whether his supervision could be
transferred to Arkansas. His probation officer said that would be inappropriate and
Hopkins needed to report in by Friday.

Hopkins failed to report as directed. A couple of weeks later Hopkins called his
probation officer and said he was still in Arkansas and was going to seek transfer of his
supervision. His probation officer instructed Hopkins to report in person immediately.
Hopkins stated he would return to Kansas in a week.

A week passed and Hopkins again failed to report. His probation officer contacted
Hopkins' mother who had not seen Hopkins for a month. She stated that Hopkins'
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grandfather did not die as Hopkins had reported. She also stated that her health was fine,
contrary to Hopkins' earlier claim.

The State moved to revoke Hopkins' probation based on his failure to report to his
probation officer, failure to maintain employment, failure to obtain approval for a change
of residence and for travel outside Kansas, and failure to abstain from illegal drugs. The
district court issued a bench warrant for Hopkins' arrest.

A few days later, Hopkins called in and left a message for his probation officer
that he was in Kansas City, Missouri, and "was about to turn himself in." But Hopkins
remained at large for nearly 1 year until he was arrested in Lawrence.

At the probation revocation hearing that followed, Hopkins stipulated to the
various probation violations asserted by the State. The State contended that Hopkins was
an absconder. The district court agreed, found that Hopkins absconded from supervision,
revoked Hopkins' probation, and sent him to prison to serve a reduced sentence of 18
months.

Hopkins appeals. He contends the district court erred in finding him to be an
absconder and, as a result, in not ordering him to serve an intermediate sanction under
K.S.A. 2015 Supp. 22-3716(c) rather than sending him to prison.

We review for substantial supporting evidence the district court's factual findings
that are the basis for its finding that Hopkins absconded. Whether those facts can legally
be characterized as absconding is an issue of law which we review de novo. See State v.
Kendall, 300 Kan. 515, 520, 331 P.3d 763 (2014); State v. Huckey, 51 Kan. App. 2d 451,
457, 348 P.3d 997, rev. denied 302 Kan. ___ (2015).

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Hopkins does not contest that he violated the terms of his probation. Rather, he
contends that before requiring him to serve his prison sentence, the court was obligated to
impose an intermediate short-term sanction under K.S.A. 2015 Supp. 22-3617(c)(1). He
contends that while one of the exceptions to this statutory requirement permits the court
to by-pass an intermediate sanction when a probationer absconds from probation
supervision, this exception did not apply to him. He argues that he informed his probation
officer of his trip to Arkansas (albeit after the fact), requested a transfer of his supervision
to Arkansas, and advised his probation officer of his later relocation to Kansas City. He
maintains that no evidence shows he hid or tried to actively deceive authorities with
regard to his whereabouts. He concludes the evidence only establishes he failed to report
and "was not where he was supposed to be."

The Kansas Code of Criminal Procedure does not define the phrase "absconds
from supervision," as used in K.S.A. 2015 Supp. 22-3716(c)(8). In Huckey, the
probationer failed to report to his probation officer for a period of over 4 months. Based
upon this fact alone, the district court by-passed an intermediate sanction and directed
Huckey to serve his underlying prison sentence. Huckey appealed, arguing that mere
failure to report does not constitute absconding. The Huckey court agreed, stating:
"Absconding is more than just not reporting." 51 Kan. App. 2d at 456. The court adopted
the definition of "abscond" found in Black's Law Dictionary, which is as follows: "To
depart secretly or suddenly, especially to avoid arrest, prosecution or service of process."
51 Kan. App. 2d at 455.

Here, Hopkins' conduct clearly satisfies the definition of absconding. He did more
than simply not report. He left for Arkansas secretly and suddenly without telling his
probation officer in advance. When located, he lied to his probation officer about the
cause of his sudden disappearance: the claimed death of his grandfather and ill health of
his mother. He lied about staying with his mother in Arkansas, who denied he had been
staying with her. He assured his probation officer he would report in, but instead moved
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to Missouri. When located in Missouri, he assured his probation officer he would turn
himself in, but he never did. His next contact with the court system was when he was
apprehended a year later in Lawrence.

Substantial competent evidence supports the district court's finding that Hopkins
absconded from supervision. Thus, the district court properly revoked Hopkins' probation
and ordered him to prison without imposing an intermediate sanction under K.S.A. 2015
Supp. 22-3716(c)(8).

With this holding, we need not address the State's argument that the meaning of
absconding should be broadened. There is no need to broaden what it means to abscond
from supervision in order to resolve the issues of this case.

Affirmed.