State v. Kunard

1

NOT DESIGNATED FOR PUBLICATION

Nos. 115,996
115,997


IN THE COURT OF APPEALS OF THE STATE OF KANSAS


STATE OF KANSAS,
Appellee,

v.

ELIZABETH K. KUNARD,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed September 8,
2017. Affirmed.

Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.

Ethan Zipf-Sigler, assistant district attorney, Marc A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.

Before HILL, P.J., ATCHESON and SCHROEDER, JJ.

PER CURIAM: Elizabeth K. Kunard appeals the revocation of her probation. While
Kunard does not contest that she violated the terms of her probation orders in her two
cases, she does contend the district court erred when it ruled that her drug usage, while
she was pregnant, made her dangerous to members of the public according to K.S.A.
2016 Supp. 22-3716(c)(9). In her view, her unborn child cannot be considered a member
of the public. Kunard's request to set aside the order revoking her probation ignores the
2

district court's finding that her continued drug usage while on probation was also
dangerous to herself. Basically, the court had also decided that her own welfare would
not be served by continuing on probation. Such a finding alone is sufficient under the
law to revoke her probation and we affirm.

After accepting Kunard's guilty pleas, the court placed her on probation.

When Kunard pled guilty, the court sentenced her to an 18-month prison sentence
for possession of methamphetamine in the first case, a consecutive 16-month sentence for
possession of methamphetamine in her second case, and a consecutive 9-month sentence
for possession of a firearm in the second case. The court suspended her prison sentences
and placed her on 18-months' probation with the usual conditions, along with an order to
refrain from continued drug usage. Kunard did not remain on probation very long.

About a month later, in December 2015, the State asked the court to revoke
Kunard's probation for:

 Absconding;
 failing to report;
 failing to enter a substance abuse program;
 failing to pay court costs and fees; and
 failing to complete her community service hours.

The following April, the State filed a second motion to revoke probation based on
an allegation that Kunard continued to use illegal drugs. Apparently, Kunard had
admitted when she was taken into custody in March that she continued using marijuana,
methamphetamine, and Xanax. As a result of this admission, the jail authorities placed
her on a "withdrawal protocol" because of concerns for her health. We take this to mean
that jail staff watched her closely for drug withdrawal signs and symptoms.
3

When Kunard appeared before the court, she explained her actions. She did not
deny violating the terms and conditions of her probation. She told the judge that she had
been battling addiction and was an intravenous methamphetamine user. She claimed to
have been "clean" (drug-free) since finding out that she was pregnant. At this point,
Kunard's attorney stated that Kunard did not know she was pregnant until February 1,
2016. Kunard admitted to using marijuana in late February but denied using
methamphetamine then. Unfortunately, in early March 2016, Kunard relapsed and began
using drugs again.

After her relapse, Kunard wanted to go to a rehabilitation clinic, but was allegedly
told to resolve her warrant before entering rehab. Kunard claimed to have a prescription
for Xanax and would soon be switched to taking Ativan instead, but she was taken into
custody before meeting with her psychiatrist. She said her psychiatrist was aware that she
was pregnant and told her to stop taking Xanax, but Kunard, in order to avoid withdrawal
symptoms, did not do so.

After hearing all of this, the district court revoked Kunard's probation and sent her
to prison. The judge stated he did not trust her and mentioned how her conduct
endangered her unborn child:

"I don't trust you and, frankly, I think you are a danger to yourself and I think
you're a danger to your unborn child. I cannot trust that you based on your track record
are going to turn the corner and protect the life of your unborn child. I can't trust that and
I won't. I am revoking your probation and I'm giving you over to the custody of the
Department of Corrections to serve out the sentences previously imposed. That's the
order of the Court that you're a danger to yourself and you're a danger to your unborn
child and you're not amendable to probation. You've had more than adequate chances to
turn the corner. You picked up another case while you were on probation. I mean, do you
understand what that means and how that looks to the Court?"

4

Kunard objected and argued that her unborn child did not meet the statutory
definition of a member of the public.

Importantly, the journal entry of the probation revocation sets out two
reasons that probation was revoked:

 Kunard was a danger to herself and no longer served by a nonprison
sentence; and
 she was a danger to the community due to her drug use while
pregnant.

We concentrate on the sufficiency of the first reason.

Revocation of probation is a matter of district court discretion.

The rules pertaining to this issue are well established. Once a probation violation
has been proved, as it was here, whether probation should be revoked rests within the
sound discretion of the district court. See State v. Skolaut, 286 Kan. 219, 227, 182 P.3d
1231 (2008). Basically, a district court's ability to revoke probation is limited by K.S.A.
2016 Supp. 22-3716(c)(1)(A-E). That law sets out a list of graduated sanctions the court
must follow for probation violations. But the district court may revoke probation and
impose the underlying sentence without a prior sanction "if the court finds and sets forth
with particularity the reasons for finding that the safety of members of the public will be
jeopardized or that the welfare of the offender will not be served by such sanction." See
K.S.A. 2016 Supp. 22-3716(c)(9). This is what the district court did here.

At the probation revocation hearing, the district court was clear that it considered
Kunard not amenable to probation and she was a danger to herself. We emphasize that
the journal entry for the hearing provides that one reason for revocation was "[Kunard] is
5

a danger to herself and no longer served by a non-prison sentence." Therefore, Kunard is
incorrect when she states, "[t]he district court did not find that Ms. Kunard's welfare
would not be served by being placed back on probation after an intermediate sanction."

Standing alone, the district court's finding that her welfare would not be served by
continuing probation can be a sufficient reason to revoke probation without imposing an
intermediate sanction. See K.S.A. 2016 Supp. 22-3716(c)(9); State v. Hobaugh, No.
114,803, 2016 WL 3219069, at *1-2 (Kan. App. 2016) (unpublished opinion). We hold
that under the circumstances of this case, that finding itself is sufficient to uphold the
court's decision to revoke Kunard's probation and send her to prison.

Obviously, the district court could not ignore the fact that Kunard was pregnant.
Nor could the court ignore the consequences of her continued drug usage on her own
health, as a pregnant woman. Those consequences to Kunard's health have nothing to do
with whether an unborn child can legally be considered a member of the public. This
finding goes to her as a person. The judge clearly said, "you are a danger to yourself . . ."
and the judge could not trust her—an admitted drug addict who had suffered a relapse
while on probation—to refrain from continued drug use if she was placed on probation
again. We find no abuse of discretion in the court's expressions of concern for her welfare
here.

The law is clear—Kunard bears the burden of proving an abuse of discretion. See
State v. Robinson, 303 Kan. 11, 90, 363 P.3d 875 (2015). Because Kunard does not argue
the district court abused its discretion with this finding about being a danger to herself,
Kunard has not satisfied her burden of proving the court abused its discretion in revoking
her probation.

In view of our holding, we need not decide whether Kunard's unborn child can be
considered a member of the public as contemplated by K.S.A. 2016 Supp. 22-3716(c)(9).
6

Because the district court's finding satisfies the statutory particularity requirement, we
affirm the decision of the district court.

Affirmed.