State v. Croslin

NOT DESIGNATED FOR PUBLICATION

No. 113,695

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MICHAEL ANDREW CROSLIN, SR.,
Appellant.


MEMORANDUM OPINION

Appeal from Barton District Court; RON SVATY, judge. Opinion filed February 26, 2016.
Affirmed.

Samuel Schirer, of Kansas Appellate Defender Office, for appellant.

Amy J. Mellor, assistant county attorney, Douglas A. Matthews, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., LEBEN and POWELL, JJ.

Per Curiam: The district court revoked Michael Croslin's probation after he failed
to report to his Intensive Supervision Officer, Amy Boxberger, and her counterpart in
Oklahoma. Croslin had been allowed to relocate to Oklahoma to complete his probation
but failed to report once he got there. The Oklahoma officer notified Boxberger of
Croslin's failure to report, and she filed a violation report listing him as an absconder.
Almost a year later, Croslin was located, arrested, and brought before the district court
for an evidentiary hearing. At the hearing, Croslin admitted that he hadn't reported
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because he knew there was a warrant out for his arrest. In light of this admission, the
district court found that Croslin was an absconder and revoked his probation.

On appeal, Croslin challenges the district court's determination that he absconded
from supervision. But the definition of absconding includes leaving to avoid arrest.
Because Croslin failed to report in order to avoid arrest, the district court was correct to
find that he had absconded from supervision.

FACTUAL AND PROCEDURAL BACKGROUND

Croslin pled no contest to possession of methamphetamine on November 1, 2012.
On February 8, 2013, he was sentenced to 20 months in prison but was granted a
dispositional departure to probation; the court ordered that Croslin serve 24 months of
probation. If he did so successfully, he would not go to prison.

Croslin failed to report to Boxberger, his intensive-supervision officer, and was
sentenced to 60 days in jail as a probation sanction on September 13, 2013. Following his
release on November 12, 2013, Croslin was given permission to move to Oklahoma and
to serve out the rest of his probation there, under the supervision of Oklahoma officials.
But Croslin failed to report in both Oklahoma and Kansas, so Boxberger filed a violation
report on February 14, 2014, and a warrant was issued for Croslin's arrest that same day.

In the violation report, Boxberger said that Croslin was an absconder and indicated
that Croslin was not living at the address he had given the probation office. The report
also included notes from the Oklahoma officials responsible for monitoring Croslin,
stating that they had been unable to locate him, even after contacting the daughter he was
supposedly living with. Croslin was not found and arrested until January 9, 2015. The
next month, the district court held an evidentiary hearing, and the court revoked Croslin's
probation.
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During the hearing, Croslin stipulated to failing to report. The State asked the
court to revoke Croslin's probation, arguing that "every time [Croslin is] placed on
probation, he absconds." The prosecutor did not reference the violation report, make any
statements regarding Croslin's reasons for failing to report, or discuss Croslin's actions in
any more detail than to say that he "basically had no contact with anyone since [his] last
probation violation." Before revoking his probation, the district court questioned Croslin
directly, "Why didn't you [report]? You were supposed to." Croslin responded, "Because
there was a warrant for my arrest already." Following this exchange, the district court
made its final ruling and revoked Croslin's probation.

In its written order, the district court checked a box indicating that it had revoked
Croslin's probation because he had "absconded or committed [a] new crime." This was
the court's first mention of absconding or a statutory basis for revocation. The court noted
that Croslin "failed to report [in Oklahoma]; . . . [was] not living at his reported place of
residence in Oklahoma; . . . [had] failed to report to Community Corrections since
December 18, 2013[;] and has absconded." Croslin has appealed to our court.

ANALYSIS

The District Court Did Not Err When Finding That Croslin Absconded.

Croslin argues that he should be given a new hearing because the district court
improperly found that he absconded from supervision under K.S.A. 2015 Supp. 22-
3716(c)(8). The underlying facts are not in dispute here—the dispute is whether Croslin's
actions constitute "absconding" under the statute. Because Croslin's challenge rests on
interpretation of a statute, we review the district court's legal conclusions de novo—that
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is, independently and without any deference. State v. Huckey, 51 Kan. App. 2d 451, 454,
348 P.3d 997, rev. denied 302 Kan. __ (August 12, 2015).

Before considering the merits of this appeal, however, we must first address one
preliminary matter. The point of Croslin's appeal is that the district court should have
ordered a further intermediate sanction—a punishment less than prison—before revoking
his probation and sending him to prison. But Croslin did not argue for an intermediate
sanction before the district court, so he must first explain why this court can consider the
issue by invoking an exception to the rule against hearing issues for the first time on
appeal. See Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R. Annot. 41); State v.
Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014).

Croslin correctly argues that two of the three exceptions apply here: "(1) The
newly asserted theory involves only a question of law arising on proved or admitted facts
and is determinative of the case; [and] (2) consideration of the theory is necessary to
serve the ends of justice or to prevent the denial of fundamental rights." State v. Phillips,
299 Kan. 479, 493, 325 P.3d 1095 (2014) (citing State v. Gomez, 290 Kan. 858, 862, 235
P.3d 1203 [2010]). Croslin does not dispute the facts; his appeal is only a question of
law—whether the district court erred when finding that he absconded. Cf. State v. Lane,
No. 111,110, 2015 WL 802739, at *3 (Kan. App. 2015) (unpublished opinion) (finding
exception applicable in a similar revocation case because it involved only a question of
law). Moreover, hearing Croslin's appeal "will serve the ends of justice by effectuating a
consistent interpretation" of K.S.A. 2015 Supp. 22-3716(c). 2015 WL 802739, at *3.
Accordingly, we will proceed to consider the merits of his appeal.

K.S.A. 2015 Supp. 22-3716(c) controls Croslin's appeal. With certain exceptions,
this statute requires that the district court impose intermediate sanctions before revoking
an offender's probation. Huckey, 51 Kan. App. 2d at 454. Under the statutory exceptions,
however, the court may revoke probation without imposing intermediate sanctions (1)
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when a probationer "absconds from supervision," (2) when a probationer commits a new
crime, or (3) if the probationer's welfare or the public's safety would be jeopardized by
imposing intermediate sanctions. K.S.A. 2015 Supp. 22-3716(c)(8)-(9). Here, the district
court had not exhausted all of the intermediate sanctions but revoked Croslin's probation
because he had absconded from supervision.

We considered in Huckey the meaning of abscond as it is used in K.S.A. 2014
Supp. 22-3716(c)(8). There, our court explained that "[a]bsconding is more than just not
reporting" and that to abscond means "[t]o depart secretly or suddenly, especially to
avoid arrest, prosecution or service of process." 51 Kan. App. 2d at 455. In another part
of the opinion, our court rephrased the test as whether a defendant "had fled or hidden
himself or deliberately acted to avoid arrest, prosecution, or service of process." 51 Kan.
App. 2d at 458. But "[a] mere allegation in a brief is not enough" for a court to find that a
probationer has absconded. 51 Kan. App. 2d at 457. First, "the State must allege that the
probationer has absconded"; then, at an evidentiary hearing, the State must prove that the
probationer absconded by a preponderance of the evidence. 51 Kan. App. 2d at 457. The
district court may then make whatever ruling the evidence supports. 51 Kan. App. 2d at
457. If, as here, a probationer appeals the district court's ruling, we review its factual
findings for substantial evidence. 51 Kan. App. 2d at 457.

Here, the district court did not explicitly follow the Huckey procedure—but it
couldn't have, because Huckey was decided 2 months after Croslin's hearing.
Nonetheless, the district court's finding was correct—Croslin did in fact abscond.

Croslin asserts that the State did not formally allege that he had absconded during
the hearing, thus failing Huckey's first requirement. But his argument misunderstands
Huckey. That case requires that the State formally allege that the probationer absconded
before an evidentiary hearing is held, thus providing notice of the claim. See 51 Kan.
App. 2d at 455-56 (discussing procedure used in State v. Raiburn, 289 Kan. 319, 331-33,
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212 P.3d 1029 [2009]). Then, at the hearing, the State must support its allegation by a
preponderance of the evidence—the State's allegation must precede the evidentiary
hearing. 51 Kan. App. 2d at 457. Here, the violation report alleged that Croslin was not
living at the address he had given his probation officer and that he should be considered
an absconder. The report led to Croslin's arrest and the subsequent hearing. Therefore, the
State alleged that Croslin absconded before the district court held an evidentiary hearing,
thus meeting Huckey's first requirement.

Having satisfied Huckey's first requirement, the State only had to support its
allegation by a preponderance of the evidence to satisfy the second. In other words, the
State had to produce evidence showing that it was "more probably true than not" that
Croslin had absconded. See Ortega v. IBP, Inc., 255 Kan. 513, 528, 874 P.2d 1188
(1994), overruled on other grounds by In re B.D.-Y., 286 Kan. 686, 187 P.3d 594 (2008).
During the evidentiary hearing, Croslin explained that he had failed to report because he
had been told that there was a warrant out for his arrest. Croslin's statement was
prompted by a question from the court and not the State, but his admission fits Huckey's
definition of abscond—he left the state and deliberately acted to avoid arrest. Croslin
attempts to downplay his admission by pointing out that he formally stipulated only to
failure to report. While a mere failure to report does not in and of itself constitute
absconding, Croslin admitted to doing more than simply missing an appointment—he
admitted acting to avoiding arrest, and in doing so he admitted to absconding.

Croslin correctly points out that the district court did not formally find that he had
absconded until preparing the journal entry of judgment. In its oral ruling, the district
judge merely stated, "Well, I'm revoking. You got to report," noting that "under the
system that I have been given, that's what I'm supposed to do." The court did not mention
absconding. In fact, the word abscond was only used once during the evidentiary hearing,
and that was when the State noted that Croslin had a history of absconding from
probation. In addition, the State did not discuss what it means to abscond or how
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Croslin's behavior fit that definition. It wasn't until the journal entry that the district court
mentioned absconding or cited a statutory basis for revoking Croslin's probation.

But Huckey was not meant to prioritize form over substance; it was meant to make
sure that courts respect the legislature's intent in requiring intermediate sanctions, with
limited exceptions, in K.S.A. 2015 Supp. 22-3716(c). See Huckey, 51 Kan. App. 2d at
456. Here, the district court did not "bypass all of the sanctions" that the legislature
created by simply "finding that [Croslin] is an absconder." See 51 Kan. App. 2d at 456.
Though not explicitly referenced during the hearing, the violation report contained two
statements that support a finding of absconding: Croslin wasn't living at the address he
provided once his transfer to Oklahoma was approved, and no one in the Oklahoma
office could locate Croslin, even after speaking with his daughter. See, e.g., State v.
Anhorn, No. 111,903, 2015 WL 3632493, at *3 (Kan. App.) (unpublished opinion)
(finding that defendant absconded when he failed to report for 3 months and left the state
without telling his probation officer or leaving a forwarding address), rev. denied 302
Kan. ___ (December 14, 2015). Add to that Croslin's admission that he failed to report
because he wanted to avoid arrest, and he meets Huckey's definition of an absconder.

Accordingly, the district court had substantial evidence to support finding that
Croslin absconded and to justify revoking his probation. The district court's judgment is
therefore affirmed.