State v. Miller

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NOT DESIGNATED FOR PUBLICATION

No. 116,667


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JON DEAN MILLER,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; TIMOTHY P. MCCARTHY, judge. Opinion filed December 8,
2017. Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Shawn E. Minihan, assistant district attorney, Thomas Matthews, legal intern, Stephen M. Howe,
district attorney, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., MALONE, J., and WHEELER, D.J.

PER CURIAM: Jon Dean Miller contends the district court erred when it revoked
his probation. Because the judge did not mark a box on a probation form which said that
he had to comply with the law as a condition of probation, Miller claims that he did not
violate his probation when he committed a new crime. We are not so persuaded. The law
permits a sentencing court to revoke probation when an offender commits a new felony
or misdemeanor while on probation. We find no error in the court's order directing Miller
to serve his prison sentence.

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While we need not elaborate on the details of Miller's crime, the conditions of his
probation are pertinent. After Miller pled guilty to criminal threat, a severity level nine
person felony, the district court sentenced him to a suspended eight-month prison term
and placed him on 12 months' probation.

Two forms make up the record of Miller's probation—the journal entry of
sentencing and a probation order form. In the journal entry, the court made some specific
orders:

 Miller was to be assessed for domestic violence and follow any
recommendations in that assessment;
 he was to be evaluated for substance abuse and follow recommendations in
that assessment; and
 he was ordered to have no violent contact with his former wife, Shelley
Miller, the victim.

In the probation order form, several possible conditions of probation are listed. In
Miller's case, some requirements were marked with an "x":

 Report as directed by his probation officer;
 obtain a domestic violence assessment and successfully comply with any
recommendations in that assessment; and
 obtain a substance abuse evaluation and successfully comply with any
recommendations.

We note the court did not mark the requirement that "Defendant shall not again violate
the law" (condition No. 4). The court also did not mark with an "x" condition No. 19—
the requirement that Miller "have no violent contact with ______." But the court filled in
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the blank with the name Shelley Miller. The transcript of the sentencing hearing revealed
that the judge did not pronounce condition No. 4 from the bench.

When the State wanted to revoke Miller's probation a few months later, it claimed
that he violated conditions Nos. 4 and 19 of his probation because he was arrested for
criminal damage to property for damaging Shelley Miller's car. According to the journal
entry, he was convicted of this crime in case No. 15DV1630. Because Miller had been
convicted of a new crime, the court found he had violated his probation conditions and
revoked it. The judge then placed Miller once again on probation, ordering him to serve
14 days in the county jail over several weekends as a sanction, and then extended his
supervision by 12 months.

A few months later, the State filed another motion to revoke Miller's probation,
this time claiming that Miller violated condition No. 4 of his probation because Miller
was arrested for domestic assault in Missouri. At the revocation hearing, Miller stipulated
that he had been arrested, but denied that the arrest was a violation of his probation
because an arrest is not a new law violation. Pressing the point, the State presented
evidence and did not rely on the stipulations.

The State called Pamela Meyer, Miller's wife, to testify. Meyer testified that in
July 2016, while they were in Osage Beach, Missouri, Miller lunged at her, bent her
backwards over the railing of the second floor balcony of a hotel room, tousled her
around the room, and strangled her. Miller told her, "I will kill you. I don't care this time;
I will go to prison." Meyer believed Miller quit because he thought he had killed her. The
court admitted photos of bruises on Meyer's throat, arms, and legs.

Also at this hearing, Miller's supervising court services officer recommended that
Miller serve his prison time. Miller had already gone through treatment and there was no
more that she could do for him. As a result, the court found Miller committed a new
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violation of the law and that public safety would not be served by imposition of another
sanction. The court revoked Miller's probation and sent him to prison to serve his original
sentence.

On appeal, Miller argues for the first time that compliance with the law was not a
condition of his probation since the judge did not check with an "x" condition No. 4 on
his probation order form. Because of this omission, he argues the district court erred
when it found that he had violated the conditions of his probation.

We must first decide if we can consider Miller's claim that he was not required to
obey the law while on probation. He made no such claim to the district court, so, can we
hear and decide this issue? We can. This issue involves only a question of law arising
from admitted facts and consideration of this theory is necessary to serve the ends of
justice. See State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).

On appeal, it is important that Miller does not contest the district court's factual
finding that he committed a new crime. This means the issue in this appeal is whether the
district court can legally revoke Miller's probation for violating the law if it had not
specifically ordered Miller to comply with the law.

A review of the law of probation and its revocation is helpful to establish a legal
context at this point. One of the goals of probation is the offender's rehabilitation. There
are certain probation conditions that a district court is required by law to order. The most
fundamental condition is that the probationer "obey all laws of the United States, the state
of Kansas and any other jurisdiction to the laws of which the defendant may be subject."
K.S.A. 2016 Supp. 21-6607(c)(1). Additionally, the district court may order other
conditions of probation "that the court deems proper." K.S.A. 21-6607(b). In other words,
the law directs the court to consider the circumstances of each offender and each case
when the court imposes such conditions. "[T]he violation [of an order of probation] must
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be established by a preponderance of the evidence. . . . [A]n eventual criminal conviction
for the act which violated the condition of probation is not required to support an order
revoking probation." State v. Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d 844 (2007).
Applying these principles to this case demonstrates why the court did not err.

Miller was on probation for a violent domestic crime when he committed domestic
assault in Missouri, a fact he is not contesting. In our view, because of K.S.A. 2016 Supp.
21-6607(c)(1), compliance with federal and state laws was a condition of Miller's
probation, even though not specifically stated by the district court. There are no
directions on the probation form here, such as, "mark all that apply." Perhaps the court
should consider redrafting the form to make it more clear that obeying the law is not
optional for offenders placed on probation in Johnson County.

In addition, Miller certainly cannot claim he was unaware of the condition when
he committed domestic assault in July 2016 in Osage Beach, Missouri. Just a few months
before, in April 2016, the court found him in violation of condition No. 4 of his probation
by committing a new crime. After all, he served 14 days in jail as a result of violating that
condition. The district court was permitted to revoke Miller's probation because of his
new crime.

Even without the form, the district court was authorized by law to revoke Miller's
suspended sentence and probation. If the offender commits a new felony or misdemeanor
while on probation, the district court may revoke the offender's probation and suspension
of sentence according to K.S.A. 2016 Supp. 22-3716(c)(8)(A). That is exactly what
happened here.

Affirmed.