State v. Scott

1
NOT DESIGNATED FOR PUBLICATION

No. 115,432

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

GARY SCOTT,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion filed May 19,
2017. Reversed and remanded.

Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before POWELL, P.J., ATCHESON, J., and FAIRCHILD, S.J.

POWELL, J.: Gary Scott appeals the district court's revocation of his probation,
arguing his due process rights were violated when he was found in violation of the terms
and conditions of his probation based upon grounds not pled in the probation violation
warrant. While the evidence shows that Scott, an addict and drug offender, likely violated
the terms of his probation by misusing his prescription medication, the probation
violation warrant did not accuse him of this, meaning the district court violated Scott's
due process rights by revoking his probation on this basis. Accordingly, we reverse the
district court and remand for further proceedings.
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FACTUAL AND PROCEDURAL BACKGROUND

After a bench trial, Scott was convicted of two counts of possession of cocaine,
possession of an unlawful substance with no tax stamp affixed, and failure to use a turn
signal. On January 24, 2013, the district court granted Scott's motion for a downward
dispositional departure and placed him on 24 months' supervised probation with an
underlying sentence of 30 months' imprisonment.

On June 19, 2013, Scott's probation was revoked and reinstated after he admitted
to committing two new crimes and driving a wanted felon in his vehicle. On February 5,
2015, his probation was again revoked and reinstated, plus his probation term was
extended for 24 months after he admitted to failing to obey the law, failing to report
contact with law enforcement, and failing to refrain from alcohol use. He was also
ordered to enter and complete the residential community corrections program. On June
16, 2015, Scott again admitted to violating his probation by being out of place of
assignment and being under the influence of an unknown substance. For a third time, the
district court revoked, reinstated, and extended his probation, ordering him to serve a
120-day prison sanction and then return to complete the residential program.

On September 11, 2015, a warrant was issued alleging Scott had violated his
probation by appearing to be under the influence of an unknown substance. The district
court held an evidentiary hearing. Aaron Crouse, a corrections worker at the Sedgwick
County adult residential facility, testified he checked Scott into the facility on the
afternoon of September 9, 2015, when Scott returned from a pass. Crouse stated Scott
was unable to maintain a conversation and had difficulty answering typical questions.
Scott was rambling, his speech was slurred, he was swaying back and forth, and his eyes
appeared droopy and lethargic. Crouse believed Scott was under the influence of an
intoxicating substance but did not know what it was because Scott had been out of the
facility on a pass.
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Stephanie Schroeder, a shift supervisor at the residential facility, testified she was
responsible for dispensing medication to residents of the facility. She would call for
medication, and the clients were responsible for collecting and taking their medication.
She indicated Scott was prescribed Zoloft and Remeron while at the facility and was
supposed to take one pill of each daily. Scott began taking Zoloft on August 30, 2015;
however, his medication chart showed he did not take it on September 1, 3, 4, 5, or 6.
Scott began taking Remeron on August 24, 2015, but he did not take it from August 29
through September 4, nor had he taken it since September 6. A disciplinary complaint
was previously made after Scott was found keeping his prescribed medication in a locker
at the facility.

Schroeder observed Scott after he returned to the facility and believed he was
showing signs of impairment. She stated he was given a urinalysis (UA) test, which
tested negative for synthetic marijuana (K-2). Schroeder said the negative UA only
indicated Scott had not taken the particular strain of K-2 tested for. She stated it was
possible he could have consumed some form of K-2 for which the facility did not test.

Greg Friedman, the residential facility coordinator, also testified he observed Scott
on September 9, 2015, and like Crouse and Schroeder, believed Scott was intoxicated or
under the influence of some type of substance. Friedman stated there had been a previous
incident on May 22, 2015, when Scott appeared to be impaired and behaved in a similar
manner. After Scott served a sanction for the May incident, he told Friedman he had used
K-2 in the past. Friedman also testified the facility stopped testing for K-2 because the
chemical formula continued to change, rendering the tests useless. Friedman discussed
prior incidents where residents had been seen using K-2 on camera but test results came
back negative. Friedman indicated he was not surprised Scott's UA came back negative
and testified the facility's best method for detecting K-2 usage was observation of the
residents.

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Scott testified he was taking Zoloft and Latuda as mood stabilizers and Remeron
for sleep problems. He denied behaving as Crouse, Schroeder, and Friedman described.
Scott testified he was functional and remembered checking in, being patted down,
initially refusing to sign the disciplinary report, and later signing it. Scott further claimed
he had taken his prescribed medications as directed that morning and that he had
medications at his home in addition to those at the facility. On cross-examination, Scott
admitted there were times he would not take his medication when it was given to him,
and he would put the medication in his cheek, swallow water, pretend he swallowed his
pill, and then take the pill out of his mouth after leaving the room. He then stockpiled his
medication to double up the dosage at a later time.

At the conclusion of the evidentiary hearing, the district court found Scott violated
his probation, stating:

"After considering the evidence that has been presented to me, in reviewing the testimony
and determining the credibility of the evidence and testimony provided to me at this time,
I am going to find that the State has in fact met its burden of proof in showing that [Scott]
has in fact violated terms of his probation on the incident of September 9, which shows
that he returned clearly under the—showing symptoms that he was clearly under the
influence of either an unknown substance or as I have determined the result of knowingly
misusing his prescribed medications.

"His own testimony referring to cheeking medications, using medications, later
doubling his medications at times, having medications or drugs located at three other
different locations outside of the residential facility, made me convinced it's not his intent
to comply with the terms of his probation . . . . So I will find that he has in fact violated
his probation."

The district court revoked Scott's probation and imposed a modified prison
sentence of 28 months.

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Scott timely appeals.

DID THE DISTRICT COURT ERR IN REVOKING SCOTT'S PROBATION?

Before addressing Scott's arguments, we recite the general rules regarding
probation revocations:

"A district court has no 'discretion in a probation revocation proceeding until the
evidence establishes a probation condition violation.' State v. Garcia, 31 Kan. App. 2d
338, 341, 64 P.3d 465 (2003). The State has the burden of establishing probation
violations. K.S.A. 2015 Supp. 22-3716(b)(2). 'To sustain an order revoking probation on
the ground that a probationer has committed a violation of the conditions of probation,
commission of the violation must be established by a preponderance of the evidence.'
[State v.] Gumfory, 281 Kan. [1168,] 1170[, 135 P.3d 1191 (2006)]. 'A preponderance of
the evidence is established when the evidence demonstrates a fact is more probably true
than not true.' State v. Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d 844 (2007), rev.
denied 286 Kan. 1183 (2008)." State v. Lloyd, 52 Kan. App. 2d 780, 782, 375 P.3d 1013
(2016).

Once there has been evidence of a violation of the terms of probation, the decision
to revoke probation rests in the discretion of the trial court. State v. Hurley, 303 Kan. 575,
580, 363 P.3d 1095 (2016). An abuse of discretion occurs when a judicial action is (1)
arbitrary, fanciful, or unreasonable, i.e., no reasonable person would take the view
adopted by the trial court; (2) based on an error of law; or (3) based on an error of fact.
State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015). "If reasonable persons could
differ as to the propriety of the action taken by the trial court, then it cannot be said that
the trial court abused its discretion." State v. Gant, 288 Kan. 76, 82, 201 P.3d 673 (2009),
abrogated on other grounds by State v. Sampson, 297 Kan. 288, 301 P.3d 276 (2013).

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Here, Scott's principal argument is that the district court erred in revoking his
probation on grounds not alleged by the State. Scott argues that his due process rights
were violated because the district court's reasons for revoking his probation—that he was
under the influence of an unknown substance or was under the influence of prescribed
medication that he was misusing—were inconsistent with the State's purported basis of
his probation violation—that he improperly possessed or consumed alcohol or drugs
without a prescription. Whether Scott's due process rights were violated is a question of
law over which we exercise unlimited review. See State v. Hall, 287 Kan. 139, 143, 195
P.3d 220 (2008).

"The Due Process Clause imposes procedural and substantive due process
requirements whenever the State deprives someone of liberty, such as through the
revocation of an individual's probation." 287 Kan. at 143; see also Gagnon v. Scarpelli,
411 U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973) (probationers entitled to due
process). Such due process rights include written notice of the probation violations
alleged. 411 U.S. at 786; Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 33 L.
Ed. 2d 484 (1972) (due process requires written notice of alleged violations); K.S.A.
2016 Supp. 22-3716(b)(1) (probation officer shall submit written report detailing in what
matter defendant has violated terms of probation). Moreover, fair notice, as a component
of due process, requires sufficient specificity to allow the defendant to adequately
respond. Parties receive less than constitutional due process if they, in fact, suffer
deprivations based on grounds other than those of which they have been given notice. See
State v. Hagan, No. 106,338, 2012 WL 5392105, *2 (Kan. App. 2012) (unpublished
opinion) (due process violation for district court to revoke probation based upon reasons
not contained in the warrant); State v. Mireles, No. 102,997, 2011 WL 135027, at *4
(Kan. App. 2011) (unpublished opinion) ("Once a court grants probation to a defendant,
it cannot turn compliance into a guessing game.").

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Here, Scott was given written notice of the claimed violation. The probation
violation warrant alleged as follows:

"That the defendant shall abide by the rule and regulations of said [community
corrections] program, to include:

"That the defendant shall not possess or consume any type of alcohol or drugs
unless they are prescribed for him by a licensed physician.

"The above-named defendant has violated the terms and conditions of
supervision as follow(s), after having been convicted of the crime of Possession of
Controlled Substance x2 (felony):

"On 9/9/15, the defendant appeared to be under the influence of an unknown
substance."

Scott does not challenge that he appeared to be impaired when he returned to the
residential center but claims the State failed to prove that his impairment was a result of
his possession or consumption of alcohol or drugs for which he did not have a valid
prescription. We agree with Scott concerning what the State had to prove here.

The warrant alleged that Scott had violated a condition of probation which
prohibited him from consuming or possessing any alcohol or drugs without a prescription
and that such violation was committed by his act of being under the influence of an
unknown substance. This means the State had to prove that Scott was under the influence
of some unknown substance other than his prescription medication. We agree with Scott
that merely proving he was under the influence of any substance was insufficient because
the warrant did not allege that it was a condition of Scott's probation that he refrain from
being under the influence of any substance.

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As previously stated, the State has the burden to prove a probation violation by a
preponderance of the evidence. See Lloyd, 52 Kan. App. 2d at 782. When reviewing the
district court's factual findings, we are to be deferential, meaning such findings are to be
upheld if there is substantial support for them in the record.

"'Substantial evidence is evidence which possesses both relevance and substance and
which furnishes a substantial basis of fact from which the issues can reasonably be
resolved. Stated another way, substantial evidence is such legal and relevant evidence as
a reasonable person might accept as being sufficient to support a conclusion. [Citation
omitted.]'" State v. Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d 844 (2007) (quoting
State v. Luna, 271 Kan. 573, 574-75, 24 P.3d 125 [2001]), rev. denied 286 Kan. 1183
(2008).

In making this determination, we do not reweigh the evidence or reassess credibility. See
State v. Daws, 303 Kan. 785, 789, 368 P.3d 1074 (2016).

Here, the district court found that Scott was under the influence of an unknown
substance. Scott argues there is no evidence to support this finding. We agree. While it is
undisputed that Scott was impaired, all the evidence points to Scott being impaired by his
prescription medication—either by using such medication properly or by using it
improperly. While there is some evidence to suggest that Scott may have been under the
influence of K2, the residential center's testing of Scott failed to show a positive result,
likely due to the fact that the composition of K2 apparently changes, making testing for it
ineffective. Accordingly, we find the record does not support the district court's finding
that Scott was under the influence of an unknown substance—that is, a substance other
than his prescription medication.

But the district court also found that Scott was under the influence due to his
misuse of his prescription medication. Scott argues the district court "moved the goal
posts" after he presented a defense he was under the influence of prescription medications
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rather than alcohol or illegal drugs. Essentially, he claims he was misled into presenting
an improper defense. We must agree. One of Scott's conditions of probation was that he
not consume or possess any alcohol or drugs other than his prescription medication.
While implicit in this condition was that Scott take his medication as prescribed, the State
did not plead Scott's misuse of his prescription medication as a probation violation in the
warrant. It accused Scott of being under the influence of an unknown substance, which is
not the same as being under the influence of one's prescription medication. The State was
aware of Scott's prescription medications; if the State wanted to revoke Scott's probation
for misusing his prescription medication, due process required that Scott be put on notice
of this. Because the State failed to plead this misuse in the probation violation warrant,
the district court could not use Scott's misuse of his prescription medications as a basis to
find him in violation of his probation.

Accordingly, we reverse the district court's order finding Scott in violation of the
terms and conditions of his probation, as well as its order revoking Scott's probation, and
remand the matter for further proceedings consistent with this order.

Reversed and remanded.

* * *

ATCHESON, J., concurring: The State gets to set the substantive terms and
conditions probationers must satisfy to stay out of prison, and it gets to draft the warrants
alleging violations of those conditions. Although the State holds all those cards, it has to
put them on the table face-up, so probationers have fair notice of what they are required
to do and how they have supposedly failed to comply. Those are obligations of
constitutional magnitude, entailing due process rights guaranteed in the Fourteenth
Amendment to the United States Constitution. Here, the Sedgwick County District Court
found Defendant Gary Scott took his prescription medications other than the way his
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physician directed. That's bad behavior, especially for someone like Scott who has
chronically abused drugs. But it neither violates the terms and conditions of his probation
nor conforms to the violation alleged in the warrant. Accordingly, I agree we should
reverse Scott's probation revocation, and I would remand with a specific direction to the
district court to reinstate the probation.

So far as the record on appeal reflects, the district court imposed standard terms
and conditions of probation on Scott, including "[n]o possession or consumption of drugs
or alcohol without a legal prescription from a physician." Scott's probation officer issued
a warrant in September 2015 alleging Scott violated a condition of probation that he "not
possess or consume any type of alcohol or drugs unless they are prescribed for him by a
licensed physician." At the end of an evidentiary hearing, the district court concluded
Scott had returned to the residential center, where he was living as part of the probation,
"clearly under the influence . . . as I have determined [as] a result of knowingly misusing
his prescribed medications." Based on that factual finding, the district court revoked
Scott's probation and sent him to prison. The evidence supported the finding, but the
finding did not establish the violation alleged in the warrant—that Scott possessed or
consumed drugs that hadn't been prescribed for him. An in-the-ballpark association
between the alleged violation and what the evidence shows isn't good enough.

Procedural due process rights attach to probation and revocation proceedings.
Gagnon v. Scarpelli, 411 U.S. 778, 781-82 & n.4, 93 S. Ct. 1756, 36 L. Ed. 2d 656
(1973). Due process takes no fixed form and must be shaped to fit the nature of the
government action and the substantive liberty interest or property right at stake by
affording procedures sufficient to protect against a wrongful deprivation commensurate
with the circumstances. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 17-18, 98
S. Ct. 1554, 56 L. Ed. 2d 30 (1978) (due process entails protection against wrongful
deprivation); Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18
(1976) ("The fundamental requirement of due process is the opportunity to be heard 'at a
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meaningful time and in a meaningful manner.' [Citations omitted.]"); 424 U.S. at 348-49
(due process requires procedures "be tailored" to the circumstances to "assure fair
consideration"). Some proceedings, such as a criminal prosecution that may result in a
significant deprivation of liberty, call for quite elaborate due process protections. A
probation or parole revocation hearing requires less stringent procedures. Morrissey v.
Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972).

A cornerstone of procedural due process is fair notice of the impending
government action. Memphis Light, Gas & Water Div., 436 U.S. at 14 ("The purpose of
notice under the Due Process Clause is to apprise the affected individual of, and permit
adequate preparation for, an impending 'hearing.'"). Probation revocations are no
exception. Morrissey, 408 U.S. at 489 (At a minimum, constitutional process due a
parolee facing revocation includes "written notice of the claimed violations[.]"); State v.
Billings, 30 Kan. App. 2d 236, 238, 39 P.3d 682 (2002) (same, probation hearing). Fair
notice, as a component of due process, is not itself particularly flexible in the sense that a
government entity might provide a comparatively generic or vague statement of the
reasons for its intended course of conduct depending on the interest at stake. Parties
facing deprivations cannot adequately respond to indistinct notification. By the same
token, parties receive less than constitutional due process if they, in fact, suffer
deprivations based on grounds other than those of which they have been given notice. See
State v. Hagan, No. 106,338, 2012 WL 5392105, at *2 (Kan. App. 2012) (unpublished
opinion) (Citing due process protections, this court holds the district court erred in
revoking probation for a reason not contained in the warrant.); State v. Mireles, No.
102,997, 2011 WL 135027, at *4 (Kan. App. 2011) (unpublished opinion) ("Once a court
grants probation to a defendant, it cannot turn compliance into a guessing game.").

Probationers are entitled to terms and conditions of probation that clearly and
directly define what they are to do or refrain from doing to comply. Anything less is a
due process violation. 2011 WL 135027, at *4 ("An ill-defined condition of probation
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violates a defendant's due process rights."); see State v. Walker, 260 Kan. 803, 810, 926
P.2d 218 (1996) (indicating probationer should be afforded opportunity to show that he or
she "was not fully aware that his [or her] conduct was in violation of the rules"); United
States v. Loy, 237 F.3d 251, 267 (3d Cir. 2001) (A term of conditional release imposed on
a defendant "violates due process by failing to provide [him or her] with adequate notice
of what he [or she] may and may not do."). Here, the underlying condition of Scott's
probation doesn't plainly cover taking otherwise properly prescribed medications in a
manner other than directed. The condition prohibited Scott from having or taking drugs
(or alcohol) that had not been prescribed for him. We can't fairly infer from that condition
a prohibition on taking prescribed medicines other than directed, even though such a
prohibition might have been a reasonable one to impose in this case. Had the district
court intended to include misuse of prescription drugs, the condition would have been
relatively easy to craft: Scott shall possess only drugs or alcohol a physician has
prescribed for him and shall consume them only as prescribed.[*]

[*]I don't know why the probation condition addresses only drugs or alcohol that
had not been prescribed. But a condition requiring prescription drugs be used only as
directed opens the door to a wide range of violations that arguably would be, at best,
technical, e.g., forgetting to take one dose or doubling up doses after missing one.

The parties have focused their attention on the violation alleged in the warrant.
That, too, presents a material due process problem. The violation is set forth as a failure
to comply with the condition that Scott not consume or possess drugs unless they had
been prescribed for him. In other words, stated affirmatively, the warrant alleges Scott
possessed or used drugs that had not been prescribed for him. He and his lawyer prepared
for and responded to that allegation. The district court, however, found Scott misused
drugs that had, in fact, been prescribed for him. What the warrant alleged and what the
district court found are two different things. And the differences are substantive, not
merely minor discrepancies. For example, had the warrant alleged Scott stole a 2012 Ford
Mustang on September 22, 2015, and the evidence at the hearing actually showed the
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stolen car to be a 2012 Chevy Camaro, I don't think the variance would have deprived
him of fair notice unless he could demonstrate some sort of actual prejudice. At the
hearing, the evidence indicated—and the district court determined—Scott likely appeared
intoxicated because he had taken too much of his prescription medications in too short a
time rather than by improperly acquiring and taking drugs he had no business possessing
at all. The district court's shift from the charged violation undercut a material part of
Scott's defense, resulting in actual prejudice.

As I said at the outset, Scott shouldn't have been abusing his medications. And he
ought to be discouraged from such deleterious behavior. But that behavior did not fall
within the allegation of the warrant and, therefore, could not have been a constitutionally
proper basis for revoking his probation. Judge Powell details Scott's earlier problems on
probation and the repeated opportunities the district court gave Scott to get it right. Scott
obviously didn't. Those failures might make him a ne'er-do-well or a delinquent in some
people's eyes. But ne'er-do-wells and delinquents get no less due process than anyone
else. Scott didn't receive the process he was constitutionally due. I, therefore, agree
Scott's probation revocation should be reversed.