State v. Livingstone

CORRECTED OPINION
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NOT DESIGNATED FOR PUBLICATION

Nos. 114,248
114,249

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

EDDIE LIVINGSTONE,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed October 14, 2016.
Reversed and remanded with directions.

Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before GREEN, P.J., MCANANY and STANDRIDGE, JJ.

Per Curiam: Eddie Livingstone appeals the district court's decision to bypass
intermediate sanctions and directly impose the underlying prison sentences after finding
Livingstone violated the terms and conditions of his probation in two cases. In bypassing
intermediate sanctions, the district court relied on two statutory exceptions to the
legislative mandate requiring intermediate sanctions before imposing an underlying
prison sentence: first, when the court finds that the safety of the members of the public
will be jeopardized or that the welfare of the offender will not be served by intermediate
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sanctions and, second, when the offender absconds from supervision. On appeal,
Livingstone claims that the district court failed to comply with the statutory requirement
to make particularized findings regarding public safety and that the evidence does not
support the district court's finding that he absconded. We agree. Because neither of the
K.S.A. 2014 Supp. 22-3716(c) exceptions relied on by the court to bypass intermediate
sanctions was met, we reverse and remand for a new dispositional hearing as more
specifically described below.

FACTS

On August 5, 2013, Livingstone entered a guilty plea in case 12 CR 1042 to one
count of possession of marijuana after a prior conviction. His criminal history placed him
in a presumptive prison category pursuant to the Kansas Sentencing Guidelines Act. At
sentencing, however, the district court followed the request of the parties and granted
Livingstone a downward dispositional departure to 12 months' probation with an
underlying prison sentence of 42 months.

In case 13 CR 3567, Livingstone entered a guilty plea to one count of possession
of marijuana after a prior conviction. At the August 15, 2014, sentencing for that case,
the district court granted both a downward dispositional and durational departure
sentence of 24 months' probation with an underlying 12-month prison sentence. The
district court found that community treatment options were available to Livingstone and
ordered him to residential community corrections. The court also revoked, reinstated, and
extended Livingstone's probation in 12 CR 1042 due to the new conviction and modified
Livingstone's underlying prison sentence from 42 months to 12 months in that case to run
consecutively with 13 CR 3567.

On February 4, 2015, an Intensive Supervision Officer (ISO) employed by the
Kansas Department of Corrections filed an affidavit alleging Livingstone had violated the
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terms and conditions of his residential community corrections supervision. Specifically,
the ISO alleged: (1) Livingstone had been disrespectful to the residential staff; (2) he
signed out of the residential facility for almost 12 hours and his whereabouts were
unknown on January 29, 2015; (3) he falsely reported to the residential staff that he had
been at work on January 29, 2015; (4) his whereabouts were unknown from 7:46 a.m. to
5:34 p.m. on January 30, 2015; and (5) his whereabouts were unknown from 6:22 p.m. to
8:12 p.m. on February 2, 2015.

The court conducted an evidentiary hearing on the alleged violations and, at the
conclusion of the matter, found the State had sustained its burden to establish the
violations by a preponderance of the evidence. The district court imposed Livingstone's
underlying sentence without first ordering him to serve an intermediate sanction based on
its findings that a return to probation was unwarranted and that Livingstone had
absconded from supervision.

ANALYSIS

Once there is evidence of a probation violation, the decision to revoke probation
rests within the sound discretion of the district court. See State v. Skolaut, 286 Kan. 219,
227-28, 182 P.3d 1231 (2008). Judicial discretion is abused if the action is (1) arbitrary,
fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact.
Fischer v. State, 296 Kan. 808, Syl. ¶ 8, 295 P.3d 560 (2013). Livingstone bears the
burden of showing such an abuse of discretion. See State v. Stafford, 296 Kan. 25, 45,
290 P.3d 562 (2012). Moreover, whether the district court properly imposed a sentence
after revoking Livingstone's probation invokes a question of law over which an appellate
court exercises unlimited review. See State v. Sandberg, 290 Kan. 980, 984, 235 P.3d 476
(2010). Likewise, review is unlimited to the extent resolution of the issues requires
statutory interpretation. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12, cert. denied 135 S.
Ct. 91 (2014).
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As a preliminary matter, January 2015 was the time period in which Livingstone
was alleged to have violated the terms and conditions of residential community
corrections supervision. Accordingly, K.S.A. 2014 Supp. 22-3716 is the proper
procedural statute to apply to the facts in this case. See State v. Kurtz, 51 Kan. App. 2d
50, 56, 340 P.3d 509 (2014) (probation violation procedure governed by the law at the
time the violation occurred, rather than the law at the time the probation revocation
hearing is held or when the underlying crime was committed), rev. denied 302 Kan. 1017
(2015). Pursuant to K.S.A. 2014 Supp. 22-3716(c), the district court is statutorily
required to impose graduated intermediate sanctions before ordering a probation violator
to serve his or her underlying sentence, unless certain exceptions apply. Although not
entirely clear, it appears from the record that Livingstone's ISO may have imposed a 3-
day intermediate sanction as authorized under K.S.A. 2014 Supp. 22-3716(b)(4)(B).
Thus, before imposing Livingstone's underlying sentence, it appears the district court was
required to impose either the 120- or 180-day sanction found in K.S.A. 2014 Supp. 22-
3716(c)(1)(C) or (c)(1)(D), unless one of the statutory exceptions applied.

The State argues that two exceptions apply here: (1) "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"; and (2) if the offender "absconds from supervision while the offender is on
probation [or] assignment to a community correctional services program." K.S.A. 2014
Supp. 22-3716(c)(8), (c)(9). At the hearing on the matter, the district court judge stated
the following in support of his decision to bypass intermediate sanctions and impose the
underlying sentences in both cases:

"Well, the problem is, Mr. Livingstone, I mean, probation—I mean, it's not like school,
where if I do 70 percent I get a C and pass, you know, it's 100 percent. I've got a—it's
like high jump, I got to jump over the bar, even if I clear all but the last inch, I have not
met even the minimum.
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"And the courts, Judge Waller, residential, they tried to get you to complete a
program. Judge Waller even denied the State's request that you be sent to prison and
granted you a second chance and gave you residential. Now, residential, that's our highest
level of supervision, we don't have anything higher than that. And if this were the first
time you were here I'd give you a little jail sanction, put you back on probation.
"But at this point, after repeated offenses, repeated probations, putting you—
giving you sanctions, putting you into residential, I don't have any other options, because
that's my highest level. So I will revoke and impose the underlying prison sentences.
. . . .
"The good thing about this, Mr. Livingstone, is you go finish your time up on this
and you will have post-release but you won't ever have any probation on this any longer.
And so it's—this helps you get this behind you, too, so you can just move on with your
life when you get out.
"Okay. Also, I will make findings that the House Bill 2170 at this point don't
apply due to public safety issues, and make findings the defendant was an absconder for
the periods of time that he was gone from the residential program. So I'll find that they
don't apply for those reasons."

Particularity

In his first claim of error, Livingstone argues the district court's statements are
insufficient to invoke the exception found in K.S.A. 2014 Supp. 22-3716(c)(9) because
they do not "set[] 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."

This court has held that "[w]hen something is to be set forth with particularity, it
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). With regard to the particularity requirement set forth in
K.S.A. 2014 Supp. 22-3716(c)(9), the district court is required to explicitly address how
the public safety would be jeopardized or how the offender's welfare would be
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compromised if the court were to impose the required intermediate sanctions. State v.
McFeeters, 52 Kan. App. 2d 45, 49, 362 P.3d 603 (2015). In McFeeters, the district court
bypassed intermediate sanctions based on evidence of the offender's drug relapses and
failure to report to drug treatment, his history on probation, questions about his honesty in
completing his drug evaluation, and the fact that he picked up a municipal court charge.
Reversing the district court's decision to impose the defendant's underlying prison term,
the McFeeters court held:

"The remarks made by the district court at McFeeters' revocation simply repeat
the type of reasoning historically relied upon by sentencing courts in discussing
amenability to probation when exercising their discretion to revoke the privilege of
probation. The law has changed. Simply stated, the district court's conclusory remarks
about McFeeters' apparent unwillingness or inability to conform his behavior to the
requirements of probation fail to explain how members of the public would be
jeopardized if McFeeters remained on probation or how McFeeters' welfare would not be
served by imposition of the immediate sanctions under K.S.A. 2014 Supp. 22-
3716(c)(1)." 52 Kan. App. 2d at 49.

Here, like in McFeeters, the district court failed to address with any particularity
how the public would be jeopardized or Livingstone's welfare would not be served if the
court bypassed intermediate sanctions, as required by the statute. And the only comment
about Livingstone's future—that serving his prison sentence will get the case behind
him—applies to all probation cases and is not a particularized finding about Livingstone.

Based on the record and the State's arguments, any relationship between the court's
findings and the exception in K.S.A. 2014 Supp. 22-3716(c)(9) would have to be implied.
Implicit findings are insufficient when particularized findings are required by statute.
State v. Miller, 32 Kan. App. 2d 1099, 1102-03, 95 P.3d 127 (2004). Thus, the district
court's statements for bypassing intermediate sanctions and imposing the underlying
sentence are insufficient to invoke the exception found in K.S.A. 2014 Supp. 22-
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3716(c)(9) because they do not set forth with particularity the reasons for finding that the
safety of the members of the public will be jeopardized or that the welfare of the offender
will not be served by such sanction.

Absconding from supervision

Livingstone next claims that the district court erred when it determined he
absconded from residential community corrections supervision. This court recently
explained the procedure for determining the absconder issue in State v. Huckey, 51 Kan.
App. 2d 451, 457, 348 P.3d 997, rev. denied 302 Kan. 1015 (2015). The State first must
allege that the probationer absconded. Then, at an evidentiary hearing, the State must
prove that the probationer absconded by a preponderance of the evidence, so that the
district court may rule on the evidence. On appeal, this court reviews the factual findings
for substantial evidence. 51 Kan. App. 2d at 457.

At Livingstone's probation violation hearing, the court heard evidence and then
found that Livingstone had violated the terms of supervision, in part because he signed
out of his residential supervision to go to work but did not go to work and his
whereabouts were unknown for periods of time. The journal entry describes the
violations in relevant part as follows:

 "Defendant failed to remain in place of assignment while at the Residential
Center; on 01/29/15, defendant signed out to work at 5:22 a.m. and returned to
the Center at 5:08 p.m. Defendant failed to go to work and his whereabouts
during these times are unknown."
 "Defendant failed to remain in place of assignment while at the Residential
Center; on 01/30/15, defendant signed out to work at 5:29 a.m. Defendant's
time care [sic] shows that he was at work from 7:00 a.m. to 7:46 a.m. ADAM
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showed that he had turned himself in at 5:34 p.m. for a three (3) day jail
sanction. Defendant's whereabouts from 7:46 a.m. to 5:34 p.m. are unknown."
 "Defendant failed to remain in place of assignment while at the Residential
Center; on 02/03/15, defendant was released from SCADF at 6:22 p.m. and
signed into the Residential Center at 8:12 p.m. Defendant's whereabouts from
07:22 p.m. [sic] to 8:12 p.m. are unknown."

The State asked the court to impose Livingstone's underlying prison term but made
no allegation or argument based on Livingstone's absence from residential in making this
dispositional argument to the court. The only finding by the district court during the
dispositional portion of the hearing was that "the defendant was an absconder for the
periods of time that he was gone from the residential program."

Absconding is "'[t]o depart secretly or suddenly, especially to avoid arrest,
prosecution or service of process,'" or that the offender has "fled or hidden himself [or
herself] or deliberately acted to avoid arrest, prosecution, or service of process." Huckey,
51 Kan. App. 2d at 455, 458. Here, as Livingstone argues, the total amount of time that
he was unaccounted for was less than 24 hours. Moreover, Livingstone never failed to
return to supervision; there is no evidence that he ever attempted to avoid arrest,
prosecution, or service of process. See Huckey, 51 Kan. App. 2d at 458. The evidence
only shows that he did not report his whereabouts to the residential staff for three periods
of time, none of which was longer than 12 hours. In fact, community corrections
employees did not become aware that Livingstone failed to go to work on January 29 and
30—and therefore did not become aware that Livingstone's whereabouts were unknown
on January 29 and 30—until February 3.

This court has repeatedly held that the mere failure to report is insufficient
evidence of absconding within the meaning of K.S.A. 2014 Supp. 22-3716(c)(8). Huckey,
51 Kan. App. 2d at 456 ("Absconding is more than just not reporting."); see State v.
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Frisbie, No. 113,968, 2016 WL 2942411, at *3 (Kan. App. 2016) (unpublished opinion)
("The State merely alleged that Frisbie did not report for a month. That alone is not
absconding."). The State briefly notes, without argument, that the Huckey decision was
filed after the court's decision to impose Livingstone's underlying prison sentence in this
case. But this court has applied the Huckey standard in reviewing earlier cases. See, e.g.,
State v. Croslin, No. 113,695, 2016 WL 758661, at *3 (Kan. App. 2016) (unpublished
opinion), petition for rev. filed March 23, 2016. And the State failed to make any
argument to the district court that Livingstone's prison term should be imposed due to his
status as an absconder—not because the court is using a different standard than was
articulated at the time of the hearing. The State failed to show by a preponderance of the
evidence that Livingstone absconded; accordingly, we find the district court erred to the
extent that it bypassed intermediate sanctions and imposed Livingstone's underlying
prison sentence on that ground.

For the reasons stated above, we reverse the district court's order revoking
Livingstone's probation and remand the case to the district court for a new dispositional
hearing. At that hearing, the district court should either impose intermediate sanctions
authorized by K.S.A. 2014 Supp. 22-3716(c) or, in the alternative, set forth with
particularity its reasons for finding that the safety of the members of the public would be
jeopardized or that Livingstone's welfare would not be served by additional intermediate
sanctions.

Reversed and remanded with directions.