State v. Clutchey

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NOT DESIGNATED FOR PUBLICATION

No. 114,566

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TERRY EDWARD CLUTCHEY,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed
December 9, 2016. Reversed and remanded with directions.

Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney¸ assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before PIERRON, P.J., ATCHESON and ARNOLD-BURGER, JJ.

Per Curiam: The Sedgwick County District Court erroneously characterized
Defendant Terry Edward Clutchey as an absconder and, as a result, improperly revoked
his probation and ordered him to serve a 29-month prison sentence without first imposing
an intermediate sanction. The State suggests the district court attempted to buttress its
decision on the grounds Clutchey's welfare would not be served by an intermediate
sanction, but the district court neither identified that reason nor offered a particularized
explanation supporting it. The district court's decision, therefore, failed to conform to the
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requirements of K.S.A. 2015 Supp. 22-3716(c). We reverse and remand for further
proceedings.

In March 2014, Clutchey pleaded guilty to attempted aggravated escape from
custody, a felony violation of K.S.A. 2013 Supp. 21-5911; he was later given a 29-month
prison sentence and placed on probation for 24 months. In May 2015, the State alleged
Clutchey had violated his probation by failing to report to his probation officer on April
29, inform his probation officer of a change of address, and attend drug treatment on May
11. Clutchey was arrested on a warrant for the probation violations in early June, and the
district court held a revocation hearing on July 7.

At the hearing, Clutchey admitted to the violations and both personally and
through his lawyer told the district court he had been confused about when and where he
was to next see his probation officer and to attend drug treatment. Based on Clutchey's
admission, the district court revoked his probation. The district court essentially rejected
the attempts to mitigate the violations and found Clutchey deliberately failed to show up
when and where he was supposed to between April 29 and his arrest on the warrant. The
district court characterized Clutchey as an absconder and ordered that he serve his
underlying prison sentence for that reason, bypassing any intermediate sanction.

In coming to that conclusion, the district court told Clutchey he had been given "a
major break" in receiving probation and proceeded to squander the opportunity when he
"just quit reporting for a month." The district court went on to say, "Clearly, probation is
not something you're willing to follow[,] and I'm not going to waste further resources . . .
here trying to supervise you."

Clutchey has appealed the district court's order that he serve his underlying prison
sentence without first having been punished with an intermediate sanction.

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Probation is an act of judicial leniency afforded a defendant as a privilege rather
than a right. See State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). A district court's
decision to revoke probation usually involves two steps: (1) a factual determination that
the probationer has violated a condition of probation; and (2) a discretionary
determination as to the appropriate disposition in light of any proved violation. State v.
Skolaut, 286 Kan. 219, Syl. ¶ 4, 182 P.3d 1231 (2008).

A defendant's stipulation to the alleged violation satisfies the first step. Here,
Clutchey so stipulated, obviating the State's duty to prove the violation by a
preponderance of the evidence. See State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d
1191 (2006); State v. Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d 844 (2007), rev.
denied 286 Kan. 1183 (2008). After a violation has been established, the decision to
reinstate probation or to revoke and incarcerate the probationer rests within the sound
discretion of the district court. See Skolaut, 286 Kan. at 227-28. A district court abuses
that discretion if it rules in a way no reasonable judicial officer would under the
circumstances, if it ignores controlling facts or relies on unproven factual representations,
or if it acts outside the legal framework appropriate to the issue. See Northern Natural
Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied
134 S. Ct. 162 (2013); State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert.
denied 132 S. Ct. 1594 (2012). Clutchey carries the burden of showing that the district
court exceeded its discretion. See State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).

As set out in K.S.A. 2015 Supp. 22-3716, a district court commonly must impose
sequentially escalating sanctions—periods of incarceration ranging from 3 to 180 days—
before ordering a defendant to serve his or her underlying prison sentence in a given
criminal case. But a district court may bypass those sanctions if the defendant commits a
new felony or misdemeanor or "absconds from supervision" while on probation. K.S.A.
2015 Supp. 22-3716(c)(8). A district court may likewise dispense with those sanctions by
"set[ting] forth with particularity" why they would jeopardize "the safety of members of
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the public" or fail to serve "the welfare of the offender." K.S.A. 2015 Supp. 22-
3716(c)(9).[*]

[*]Clutchey has challenged the sufficiency of the district court's decision for the
first time on appeal. Appellate courts generally decline to consider points not presented to
the district court. State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). But we
recognize an exception when consideration will "serve the ends of justice." State v.
Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). This is such a case. By taking up the
issue, we serve the strong legislative purpose expressed in K.S.A. 2015 Supp. 22-3716(c)
for reform of probation and sentencing standards with an eye toward alleviating both
prison overcrowding and extended incarceration of defendants amenable to lesser
sanctions. See State v. Lane, No. 111,110, 2015 WL 802739, at *3 (Kan. App. 2015)
(unpublished opinion). Here, too, the relevant facts are undisputed, so we address what
are functionally questions of law.

The issues here turn on whether the district court applied the appropriate legal
framework to the probation revocation. This court's decision in State v. Huckey, 51 Kan.
App. 2d 451, Syl. ¶ 5, 348 P.3d 997 (2015), rev. denied 302 Kan. 1015 (2015), construing
"absconding" as a probation violation is particularly pertinent. The Huckey decision was
published about 1 1/2 months before Clutchey's revocation hearing.

In Huckey, this court held that within the probation scheme outlined in K.S.A.
2014 Supp. 22-3716, absconding entails more than simply failing to report as required. 51
Kan. App. 2d at 457. Rather, the probationer must have "fled or hidden himself or
deliberately acted to avoid arrest, prosecution, or service of process." 51 Kan. App. 2d at
458. In this case, the State presented no evidence Clutchey had left the jurisdiction or had
otherwise gone underground to avoid being found. The district court simply found that
Clutchey failed to report to his probation officer for a month and didn't show up at a drug
treatment program and, in turn, equated his conduct to absconding. That amounted to
error.

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The district court, therefore, did not find sufficient legal grounds under K.S.A.
2015 Supp. 22-3716(c)(8) to avoid imposing an intermediate sanction on Clutchey for the
probation violations he admitted. In short, the district court erred in determining Clutchey
to be an absconder and could not rely on that reason to require he serve his underlying
prison sentence.

The State argues that the district court also found that imposing an intermediate
sanction on Clutchey would not have served his welfare—a separate statutory ground for
dispensing with intermediate sanctions under K.S.A. 2015 Supp. 22-3716(c)(9). Although
the district court alluded to Clutchey's criminal history and chastised Clutchey for being
cavalier about the obligations of his probation, it did not reference the offender-welfare
exception to intermediate sanctions. Nor did the district court say explicitly or implicitly
that Clutchey's own welfare would be enhanced in the long run if he were to serve his
underlying sentence. To the contrary, the district court stated the criminal justice system
would benefit from Clutchey's incarceration because it could then redirect the resources it
had been expending on his probation.

The transcript of the revocation hearing belies the State's argument. The district
court did not appear to have considered K.S.A. 2015 Supp. 22-3716(c)(9) in ordering
Clutchey to prison. Even if that appearance were inaccurate, the district court did not
state "with particularity the reasons" Clutchey's welfare would be furthered by his
imprisonment. See State v. Bailey, No. 112,790, 2015 WL 8590550, at *3 (Kan. App.
2015) (unpublished opinion) (to satisfy particularity requirement of K.S.A. 2013 Supp.
22-3716(c)(9) district court must outline reasons with exactitude and attention to detail);
State v. Smith, No. 112,604, 2015 WL 7693769, at *3-4 (Kan. App. 2015) (unpublished
opinion) (same). An order lacking the required particularity must be reversed. So the
alternative basis the State suggests for dispensing with intermediate sanctions also falls
outside the requisite legal framework and necessarily fails.

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We reverse the district court's order requiring Clutchey to serve the 29-month
prison sentence and remand for further proceedings regarding the probation revocation
consistent with this opinion.