State v. Peters

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NOT DESIGNATED FOR PUBLICATION

No. 112,123

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KENNETH PETERS,
Appellant.

MEMORANDUM OPINION


Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed October
23, 2015. Affirmed.

Corrine E. Gunning, 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 PIERRON, P.J., BRUNS and SCHROEDER, JJ.

Per Curiam: Kenneth Peters appeals the revocation of his probation and the
trial court's failure to impose intermediate sanctions before ordering him to serve his
underlying prison sentence. We affirm.

In 2013, Peters pled guilty to an offender registration violation, a severity level 6,
person felony. On June 14, 2013, the trial court sentenced Peters to an underlying prison
term of 38 months' incarceration and then granted a downward dispositional departure to
a probation term of 24 months' community corrections. The court granted the departure
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based on several factors: (1) Peters' acceptance of responsibility; (2) his entering a plea;
(3) the lesser degree of harm for the offense; (4) Peters' age; (5) Peters' paranoid
schizophrenia; (6) better treatment in community corrections; (7) Peters' convictions were
over 10 years old; (8) there were no prior charges for failure to register; and (9) the State
had joined in the departure recommendation. Despite the court's extreme leniency, Peters
quickly violated the conditions of his probation.

On July 12, 2103, the State filed a warrant alleging Peters had violated his
probation by consuming alcohol on July 11, 2013, and failed an alcohol breath test. At a
hearing on August 8, 2013, the parties discussed the 2013 amendments to the probation
violation statutes and the application to Peters. Peters admitted to the probation violation
and waived his right to an evidentiary hearing. The trial court revoked Peters' probation
and reinstated probation after ordering Peters to serve 2 days in the county jail. It was not
too long before Peters was again before the trial court on alleged violations of his
probation.

On October 7, 2013, the State filed a second warrant alleging Peters violated his
probation. The allegations included: (1) on 9/11/13, failure to engage in Crisis Transition-
Case Management and was discharged on 10/1/13; (2) on 9/20/13, failure to attend
medication management appointment at ComCare; (3) on 9/30/13, failure to report to
ISO; (4) failure to pay court costs/restitution for September 2013; (4) failure to pay
Shawnee County Department of Corrections Adult Intensive Supervision Programming
fees for September 2013; and (5) on 10/4/13, failure to report to the intensive supervision
officer. Prior to a probation revocation hearing, the trial court granted a motion to
determine Peters' competency to proceed with this matter. The proceedings were
suspended until completion of Peters' evaluation. In May 2014, Peters was found
competent to stand trial for the probation violation.

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The trial court held a second probation violation hearing on May 6, 2014. Peters
again admitted to the alleged violations in the probation warrant. The court made several
findings applicable to Peters' sentence following the probation violation. First, the court
found the intermediate sanction provisions of K.S.A. 2013 Supp. 22-3716 were not
retroactive because the offense and sentencing occurred prior to July 1, 2013, the
effective date of the statute. Second, the court found alternatively that if K.S.A. 2013
Supp. 22-3716 applied retroactively that Peters' two consecutive failures to report
constituted absconding under K.S.A. 2013 Supp. 22-3716(c)(8), and would be sufficient
to revoke his probation. Third, the court made an additional alternative holding and found
the public safety exception under K.S.A. 2013 Supp. 22-3716(c)(9) also allowed for
revoking Peters' probation due to his paranoid schizophrenic diagnosis, his history of
auditory hallucinations, his ongoing medication requirements for schizophrenia, and his
failure to complying with his medication regimen. Fourth, the court held Peters' welfare
would not be served under the new intermediate sanctions as he would not have the
availability of the mental health services from Larned State Hospital. The court
committed Peters to the Larned State Hospital for service of his original prison sentence.
Peters appeals.

Although some of the trial court's initial conclusions were incorrect, we find no
abuse of discretion in its ultimate decision to deny Peters' intermediate sanctions under
K.S.A. 2013 Supp. 22-3716.

First, the intermediate sanction provisions are retroactive and applicable to Peters.
K.S.A. 2014 Supp. 3716(c)(12) expressly provides: "The violation sanctions provided in
this subsection shall apply to any violation of conditions of release or assignment or a
nonprison sanction occurring on and after July 1, 2013, regardless of when the offender
was sentenced for the original crime or committed the original crime for which
sentenced." See State v. Kurtz, 51 Kan. App. 2d 50, 56, 340 P.3d 509 (2014) ("The
legislature has therefore clarified that the date that controls the law that applies to the
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imposition of sanctions for violating probation is the law that existed when a defendant
violated probation, not the law that existed when the defendant committed the underlying
crime as this court held in Dreier [29 Kan. App. 2d 958], nor the law in effect when the
probation hearing occurred."). The events of Peters' probation violation occurred in
September and October 2013. Consequently, the applicability date of July 1, 2013, for
imposing intermediate sanctions was met and the trial court's finding of no retroactivity
was incorrect.

K.S.A. 2014 Supp. 22-3716 governs the available sanctions the trial court could
impose upon a finding that Peters had violated his probation. The statute provides that a
sentencing court should generally give a probation violator one of the various graduated
intermediate sanctions it lists before ordering that the probationer serve the underlying
prison sentence. K.S.A. 2014 Supp. 22-3716(c)(l) sets out those sanctions in its several
subsections.

However, the trial court is not always required to impose an intermediate sanction
before remanding a probationer to prison. The court can revoke probation without
imposing one of the graduated sanctions found under K.S.A. 2014 Supp. 22-3716(c) 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." K.S.A. 2014 Supp. 22-3716(c)(9). Similarly, the court can
bypass intermediate sanctions if it finds that the offender has absconded from
supervision. K.S.A. 2014 Supp. 22-3716(c)(8).

The State needed to prove by a preponderance of the evidence that Peters had
committed a violation of the conditions of his probation. See State v. Gumfory, 281 Kan.
1168, 1170, 135 P.3d 1191 (2006). Peters does not challenge the finding that he violated
his probation. He stipulated to his violations. Once a violation of probation has been
found, the resulting disposition is within the trial court's sound discretion. 281 Kan. at
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1170. The abuse of discretion standard still applies to disposition decisions under K.S.A.
2014 Supp. 22-3716(c)(8) or (9).

However, the trial court made alternate findings if the 2013 amendments were
retroactive. The court found that if K.S.A. 2013 Supp. 22-3716 applied retroactively then
Peters' two consecutive failures to report constituted absconding under K.S.A. 2013
Supp. 22-3716(c)(8), and would be sufficient to revoke his probation.

The State argues there is currently a split of authority as to whether the State is
required to prove that a defendant is an absconder. The State cites State v. Carpenter, No.
111,029, 2015 WL 770208, at *5 (Kan. App. 2015) (unpublished opinion), rev. denied
302 Kan. ___ (August 13, 2015), where a panel of our court determined that the State
was not required to prove that a defendant was an absconder for the district court to find
that she had absconded from supervision when she had not reported to her probation
officer for 2 months. However, the Carpenter court's decision concerning absconding
was dicta because it had already found the district court had not abused its discretion in
bypassing additional intermediate sanctions because imposition of those sanctions would
not serve Carpenter's welfare. The court found Carpenter had not availed herself of the
services—treatment for alcoholism, violent aggressive behavior, finding stable
residence—her supervising officers attempted to provide that could have improved her
condition and kept her out of custody. 2015 WL 770208, at *5

In State v. Huckey, 51 Kan. App. 2d 451, 348 P.3d 997 (2015), rev denied 302
Kan. ___ (August 12, 2015), another panel of this court found that if the imposition of
intermediate sanctions is to be avoided in the event probation is revoked due to the
probationer absconding from supervision, the State must allege that the probationer has
absconded and must prove, at an evidentiary hearing, by a preponderance of the evidence
that the probationer has absconded. Another panel of this court recently followed Huckey
in State v. Anhorn, No. 111,903, 2015 WL 3632493 (Kan. App. 2015) (unpublished
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opinion). Anhorn failed to report for a period of 3 months, he left the state without telling
his probation officer or providing a forwarding address, and he was arrested in Nebraska.
The Anhorn court applied a stricter definition by finding that "absconding from
supervision within the meaning of the relevant Kansas statute requires something more
than failing to report." 2015 WL 3632493, * 3. The Anhorn court held:

"We find no procedural error in the manner in which this evidence was
presented. The district court held an evidentiary hearing at which the State was required
to prove, and did prove, by a preponderance of the evidence that the probationer had
absconded from supervision. See Raiburn, 289 Kan. at 331-33, 212 P.3d 1029; Huckey,
2015 WL 1874459, at *4; Campbell, 2010 WL 198502, at *2." Anhorn, 2015 WL
3632493, * 3

Here, the trial court found that based on Peters' stipulation that he failed to report
to his probation officer for 2 months, he had absconded from supervision. We find
pursuant to Huckey and Anhorn, the trial court's finding was insufficient. Had it not been
for the trial court's alternative reliance on Peters' welfare or public safety factors, we
would remand for an evidentiary hearing for the State to prove by a preponderance of the
evidence that Peters had absconded from supervision.

Although the trial court failed to properly find that Peters was an absconder, we
still hold that the court did not abuse its discretion in denying intermediate sanctions. The
court's third and fourth alternative holdings were pursuant to the public safety and
welfare of the defendant exceptions to application of intermediate sanctions.

We apply an abuse of discretion standard to review the trial court's decision to
revoke Peters' probation and order him to serve his underlying sentence. See State v.
Raiburn, 289 Kan. 319, 332-33, 212 P.3d 1029 (2009); 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.
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Fischer v. State, 296 Kan. 808, Syl. ¶ 8, 295 P.3d 560 (2013). Peters bears the burden of
showing such abuse of discretion. See State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562
(2012).

The trial court found the public safety exception under K.S.A. 2013 Supp. 22-
3716(c)(9) also allowed for revoking Peters' probation due to his paranoid schizophrenic
diagnosis, his history of auditory hallucinations, his ongoing medication requirements for
schizophrenia, and his failure to comply with his medication regimen. The court also held
that Peters' welfare would not be served under the new intermediate sanctions of a 120-
or 180-day prison internment as he would not have the availability of the mental health
services from Larned State Hospital.

The trial court set forth with sufficient particularity its reasons for finding that the
safety of the members of the public would be jeopardized and that Peters' welfare would
not be served by such intermediate sanctions. See K.S.A. 2014 Supp. 22-3716(c)(9).
Peters' admitted that he failed to engage in crisis transition case management. The State
argued this was also Peters' second probation violation and the Larned competency
evaluation that postponed the case indicated Peters would benefit from further mental
health services provided at Larned. The State asserted that if Peters refused to take his
medication as ordered, then he was clearly a risk to the community and himself.
Accordingly, we find no abuse of discretion in the trial court's denial of intermediate
sanctions.

Affirmed.