State v. Walker

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NOT DESIGNATED FOR PUBLICATION

No. 118,411

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

AARON JUSTIN WALKER II,
Appellant.


MEMORANDUM OPINION

Appeal from Montgomery District Court; F. WILLIAM CULLINS, judge. Opinion filed November
16, 2018. Affirmed.

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

Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before BRUNS, P.J., BUSER and SCHROEDER, JJ.

PER CURIAM: Aaron J. Walker II appeals the district court's revocation of his
probation. He alleges the State failed to prove, by a preponderance of the evidence, that
he absconded as the basis to revoke his probation. There was sufficient evidence
submitted to the district court to revoke Walker's probation because he admitted to
violating probation. We affirm.

Walker pled no contest to possession of hydrocodone and possession of marijuana
with a prior conviction, each severity level five drug felonies. The district court sentenced
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Walker concurrently on each count and placed Walker on supervised probation with
community services.

In 2016, the State alleged Walker committed several probation violations:
committing a new crime, using marijuana, missing group and individual treatment
sessions, not maintaining employment, and not paying his court costs or fees. The State
also alleged Walker did not report to his intensive supervision officer (ISO) in June 2016
but did so in July 2016. Walker admitted he was in Texas without his ISO's permission.
As of August 2016, Walker's ISO considered him an absconder from supervision. Walker
was arrested about a year later.

At his probation violation hearing, the following colloquy occurred between the
district court and Walker:

"THE COURT: All right. Mr. Walker, you're entitled to a hearing on the
allegations that you violated the terms and conditions of your probation. At that hearing,
the State of Kansas would be able to prove—would have to prove each and every one of
the allegations. They would call witnesses and they would present evidence. You would
have the opportunity to cross-examine their witnesses and look at their evidence and call
your own witnesses and present your own evidence. But if you admit, none of that occurs
and we immediately go to disposition. Is that what you desire to do?
"THE DEFENDANT: Yes, sir.
"THE COURT: All right.
"MR. RICKMAN: Speak a little louder so she can hear you.
"THE COURT: Yes. So you're waiving your right to a hearing on these
allegations, correct?
"THE DEFENDANT: Yes, sir.
THE COURT: You're admitting that you failed to refrain from violating the law;
is that correct?
"THE DEFENDANT: Yes, sir.
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"THE COURT: You're admitting that you failed to avoid injurious and vicious
habits; is that correct?
"THE DEFENDANT: Yes, sir.
"THE COURT: You're admitting that you failed to report to your ISO as
directed; is that correct?
"THE DEFENDANT: Yes, sir.
"THE COURT: You're admitting that you failed to work suitably at employment;
is that correct?
"THE DEFENDANT: Yes, sir.
"THE COURT: And you're admitting that you failed to remain in the area
specified by your ISO; is that correct?
"THE DEFENDANT: Yes, sir.
"THE COURT: You're admitting you didn't complete Senate Bill 123 treatment;
is that correct?
"THE DEFENDANT: Yes, sir.
"THE COURT: And you didn't pay off your court costs, fines, and fees; is that
correct?
"THE DEFENDANT: Yes, sir.
"THE COURT: And you didn't reimburse the State of Kansas for the Senate Bill
123 $300 reimbursement; is that correct?
"THE DEFENDANT: Yes, sir.
"THE COURT: All right. Based on your admissions, the Court will find that you
violated the terms and conditions of your probation and we'll revoke the same."

The district court proceeded to disposition and Walker requested a 180-day jail
sanction. The State responded requesting a sanction at least that long. After prompting by
the district court, Walker's ISO stated: "I was going to say, he didn't only abscond from
us, he's absconded from parole, too, for his probation violation that he was sent to prison
on here." The district court remanded Walker to the department of corrections to serve
the remainder of his sentence in prison and completed the hearing with the following:

"Yes. But what that tells me is probation is kind of futile because he's gone on to
the penitentiary before. So, Mr. Walker, here's the deal. You ran, you absconded. Just like
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I said, that's pretty much telling the Court, 'I'm not concerned with rehabilitating myself.
I'll only become concerned with rehabilitating myself when I'm standing before the judge,
cuffed, and then I'll go, Let [sic] me get treatment. Let me try again.' I believe that there
should be consequences for your actions and the consequence for the action of
absconding is to serve the entire balance of your sentence."

In its journal entry, the district court marked a box revealing it revoked his
probation either because he absconded or because he committed a new crime.

When a probation violation is established, the decision to revoke probation is
within the sound discretion of the district court. A judicial action is an abuse of discretion
if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or
(3) is based on an error of fact. Walker bears the burden to show an abuse of discretion in
revoking probation. Whether the district court properly imposed a sentence after revoking
Walker's probation is a question of law over which an appellate court exercises unlimited
review. Similarly, where resolution of this issue requires statutory interpretation,
appellate review is unlimited. See State v. McFeeters, 52 Kan. App. 2d 45, 47-48, 362
P.3d 603 (2015).

Historically, district courts had broad authority to sanction an offender who
violated his or her terms of probation. State v. Dooley, 308 Kan. 641, 647, 423 P.3d 469
(2018). The Legislature limited that authority in K.S.A. 2017 Supp. 22-3716. Now, the
district court must impose an intermediate sanction when an offender on probation or
community corrections violates the terms of his or her probation or assignment.
Intermediate sanctions include 2 or 3 consecutive days in county jail, not to exceed 18
days of confinement. K.S.A. 2017 Supp. 22-3716(c)(1)(B). If the district court already
imposed that sanction, it may remand the offender to the secretary of corrections for up to
120 days. K.S.A. 2017 Supp. 22-3716(c)(1)(C). If it has already imposed either of those
sanctions, the district court may then remand the offender to the secretary of corrections
for up to 180 days. K.S.A. 2017 Supp. 22-3716(c)(1)(D). Nonetheless, the district court
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may bypass the intermediate sanctions and revoke an offender's probation or community
corrections assignment when an offender absconds while on supervision—K.S.A. 2017
Supp. 22-3716(c)(8)(B)—or the defendant has committed a new crime while on
probation—K.S.A. 2017 Supp. 22-3716(c)(8)(A).

The Kansas Supreme Court has recently revised the standards used to determine
whether an offender "absconds from supervision" under K.S.A. 2017 Supp. 22-3716(c).
Dooley, 308 Kan. at 656-58. Dooley tested positive for drug use and did not report to
community corrections for about a month because he was scared. The district court
revoked his probation. The Kansas Supreme Court adopted new standards from State v.
Robbins, 345 Or. 28, 31, 188 P.3d 262 (2008), and explained absconding under K.S.A.
2017 Supp. 22-3716(c) required more than an offender engaging in a course of action or
inaction—it requires a conscious intent to hide or evade the legal process. Dooley, 308
Kan. at 656-58. The State now has the burden to show the offender engaged in action or
inaction with a conscious intent to hide from or evade legal process—this may include
evidence the offender intentionally avoided supervision or detection by his or her
probation officer. Next, the district court must consider whether the offender's acts show
intent of hiding within or secretly leaving the jurisdiction to evade legal process. An
offender's failure to meet with a probation officer or being unable to be located for a brief
time is not enough. 308 Kan. at 657.

There were no facts before the district court to conclude Walker absconded from
supervision because no evidence suggested he was hiding within or secretly leaving the
jurisdiction to evade legal process. No one testified about Walker's whereabouts during
his nearly year-long nonreporting period. The affidavits filed with the district court show
Walker did not notify his ISO he was leaving Kansas until he was already in Texas in
July 2016. However, the affidavits are silent about whether Walker left Kansas to evade
legal process. In court, statements not under oath from Walker's ISO were conclusory: "I
was going to say, he didn't only abscond from us, he's absconded from parole, too, for his
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probation violation that he was sent to prison on here." There is no evidence about when
or how Walker returned to Kansas—did he return to Kansas the day after he stopped
contacting his ISO or was Walker arrested by Texas law enforcement nearly a year later?
The record shows Walker was in custody in Montgomery County just before the
probation violation proceedings, but it is unclear if Walker was hiding within the
jurisdiction or turned himself in. We recognize the district court could not do this analysis
because Walker's probation violation hearing occurred before the Kansas Supreme Court
issued Dooley, 308 Kan. at 657. With this lack of evidence, there is nothing in the record
to support the district court's finding Walker absconded.

However, the State also claims the district court revoked Walker's probation
because he committed a new misdemeanor. The State admits the district court did not
orally announce he was sending him to prison for committing a new crime. But the record
clearly reflects the district court revoked his probation for committing a new crime. The
district court checked a box on the journal entry showing it revoked his probation because
Walker committed a new crime. The district court also revoked for the additional reasons
set out in box 3 of the revocation journal entry.

The State correctly notes the district court has authority to revoke an offender's
probation or assignment to community corrections when the offender "commits a new
felony or misdemeanor" while on probation or assignment to community corrections.
K.S.A. 2017 Supp. 22-3716(c)(8)(A). Even so, in criminal proceedings "[s]entencing . . .
takes place when the [district] court pronounces the sentence from the bench." State v.
Jackson, 291 Kan. 34, 35, 238 P.3d 246 (2010). Here, in the first colloquy with Walker,
the district court ordered his probation revoked and then moved to disposition. Although
the district court failed to mention the new crime finding at the end of the hearing, we
find it was sufficiently mentioned. We acknowledge the better practice would be to
clearly state all the reasons on the record why a defendant is being sent to prison. But the
journal entry correctly reflects the district court sent him to prison for the additional
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probation violation of committing a new crime. The first reference by the district court to
revoking his probation was sufficient, and if error, it was harmless since Walker admitted
on the record he had committed a new crime. See State v. Kennon, No. 102,936, 2010
WL 3662890 (Kan. App. 2010) (unpublished opinion).

Affirmed.