State v. Hollie

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NOT DESIGNATED FOR PUBLICATION

No. 112,205

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROBERT HOLLIE,
Appellant.

MEMORANDUM OPINION


Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed October 30,
2015. Affirmed.

Heather Cessna, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

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

Per Curiam: This case has an unusual procedural background. After being
convicted of his third driving under the influence (DUI), Robert Hollie was sentenced to
48 hours in jail, followed by 88 days on house arrest, followed by 12 months' probation.
The State failed to keep tabs on Hollie, even after he violated the terms of his probation 6
months after sentencing. There appears to have been no contact between Hollie and law
enforcement officers or probation officers for nearly 2 1/2 years until he was stopped for
a traffic violation. At that point, the State tried to revoke his probation. But the district
court determined Hollie had failed to serve his mandatory minimum 90 days, and
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therefore had not even been eligible for probation. The court then ordered Hollie to finish
serving his 90 days and then begin his 12-month probationary period.

Because we find that the statute under which Hollie was charged specifically
requires a defendant to serve a minimum of 90 days before being eligible for probation,
the district court correctly determined Hollie never had been on probation when the State
tried to revoke his probation.

On August 8, 2011, Hollie pled guilty to driving under the influence, third offense,
in violation of K.S.A. 2010 8-1567(f)(1) and driving with no proof of insurance, in
violation of K.S.A. 40-3104.

The district court sentenced Hollie on October 14, 2011, to 18 months' in jail but
imposed 12 months' probation after Hollie served the mandatory 90 days. Once Hollie
served the statutorily mandated 48 hours, the court authorized house arrest for the
remaining 88 days. Hollie was also ordered to pay a fine of $1,800.

Hollie did begin reporting to a probation officer. On April 23, 2012, a probation
violation warrant was issued alleging Hollie had violated the conditions of his probation.
Hollie had failed to refrain from the possession, use, or consumption of drugs, and failed
to make monthly payments towards fines and fees as directed by the district court. The
State made no effort to serve this warrant.

On January 27, 2014, a second warrant was issued alleging Hollie had again
violated the conditions of his probation by failing to obey the law, failing to provide
proof of attendance of outpatient treatment and biweekly support group meetings, and
failing to serve 88 days on house arrest.

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Hollie filed a motion to dismiss the probation revocation warrant based on the
State's failure to act to revoke his probation in a timely manner and requested the district
court terminate his probation. Hollie cited State v. Haines, 30 Kan. App. 2d 110, 39 P.3d
95 (2002), for the proposition that the State unreasonably waited too long to serve the
2012 warrant.

The district court held a hearing on April 16, 2014. The State conceded that no
effort had been made by the warrant division to serve the 2012 probation revocation
warrant. The State argued the 20-month delay in serving the warrant was not "on its face
unreasonable." But even if it was, the issuance of the 2012 warrant tolled Hollie's
probationary period, making the 2014 warrant timely. The State urged the court to
proceed on the 2014 warrant even if it deemed the 2012 warrant was untimely.

Hollie argued no one ever came to him regarding the 2012 warrant, and that
justified dismissing the case and terminating probation. Hollie suggests his probation
should have expired by then.

The district court determined the State had waived any opportunity to enforce the
2012 warrant by unnecessarily delaying its execution. The court held that the 2012
warrant tolled the expiration of the probationary period. The court acknowledged that
since this was a DUI conviction, it made this case different from others and determined
Hollie's failure to pay fines precluded his probation period from terminating. Regarding
the 2014 violations, the court determined it was "not inclined to let [Hollie] skate on
mandatory provisions of the DUI statute merely because of the passage of time." Because
Hollie had failed to report, the court determined he had absconded.

In argument, Hollie mentioned the "90-day mandatory period in the DUI statute."
The district court then noted "another unique circumstance of the DUI statute" that
probation does not even begin until a defendant serves the mandatory sentence first. The
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court determined that under the facts of this case, Hollie's probationary period had not
even started due to his failure to serve his required house arrest and therefore probation
could not have expired.

Hollie acknowledged he was a few days short of serving the 90-day mandatory
sentence. Hollie also admitted he did not fully comply with the house arrest program and
payment of all fees. He also admitted to driving while suspended and having a tag not
assigned to the proper vehicle. The district court calculated that Hollie had 8 days left to
serve of his mandatory 90 days.

The district court then ordered Hollie to serve the balance of his 90-day minimum
sentence and ordered the 12 months' probation to begin thereafter.

On April 23, 2014, the district court issued its journal entry memorializing its
order. The court also made alternative findings. If Hollie was eligible for probation prior
to serving the 90 days, the court found the State had made no reasonable effort to serve
the 2012 warrant, and therefore waived its right to revoke Hollie's probation based on
that. But, "the filing of [the 2012] warrant successfully tolled the probation termination
date." Therefore, the 2014 warrant was properly before the court. Hollie's term of
probation would have been extended as a matter of law under K.S.A. 2010 Supp. 8-
1567(i) for failing to pay the fines ordered by the court. Hollie admitted the violations in
the 2014 warrant. Based on these alternative findings, the court remanded Hollie to serve
the remaining portion of his 90-day sanction and, upon release, a probationary period of
12 months.

Hollie brings this appeal.

Hollie frames the issues as appellate review of whether the district court properly
dismissed his motion to dismiss the warrant. Hollie argues this court has unlimited review
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over the question of law whether the district court had jurisdiction over the revocation.
The State adopted this framing of the issue.

However, the real issue seems to be whether the district court correctly interpreted
K.S.A. 2010 Supp. 8-1567(f)(1) when it determined Hollie was required to serve the
mandatory 90-day sentence before his probationary period began. This predicate question
is one of statutory interpretation, for which we have unlimited review. State v. Eddy, 299
Kan. 29, 32, 321 P.3d 12 (2014).

The cases Hollie cites in support of his argument that the district court should have
found it had jurisdiction to revoke his probation are not on point. In State v. Gary, 282
Kan. 232, 144 P.3d 634 (2006), the defendant was convicted of forgery. The second case
he relies on, State v. Hilton, 49 Kan. App. 2d 586, 311 P.3d 1161 (2013), was recently
vacated and the appeal was dismissed in State v. Hilton, 301 Kan. 991, 349 P.3d 475
(2015). For reasons discussed below, the DUI statute is unique in that our legislature has
clearly expressed its intention that defendants convicted under the statute actually serve a
minimum sentence and that probation does not expire until the defendant pays all fines
and fees. Because neither Gary nor Hilton involve the DUI statute, they are not helpful
here.

The intent of the legislature governs if that intent can be ascertained. State v.
Williams, 298 Kan. 1075, 1079, 319 P.3d 528 (2014). We must first attempt to ascertain
legislative intent through the plain meaning of the statutory language. State v. Phillips,
299 Kan. 479, 495, 325 P.3d 1095 (2014). When a statute is plain and unambiguous, we
need not speculate about the intent behind clear language; we must also not read
something into the statute that is not readily found in its words. State v. Brooks, 298 Kan.
672, 685, 317 P.3d 54 (2014).

The statute at issue in this case is K.S.A. 2010 Supp. 8-1567:
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"On the third conviction of a violation of this section, a person shall be guilty of a non-
person felony and sentenced to not less than 90 days . . . . The person convicted shall not
be eligible for release on probation . . . until the person has served at least 90 days'
imprisonment." (Emphasis added.) K.S.A. 2010 Supp. 8-1567(f)(1)

The plain language of this section indicates an individual convicted under this
section must serve 90 days before probation is an option.

The court's analysis in State v. Skillern, 48 Kan. App. 2d 350, 288 P.3d 147
(2012), is helpful. In Skillern, the defendant was sentenced under K.S.A. 2011 Supp. 21-
5414(b)(1) for misdemeanor domestic battery to 6 months' imprisonment in the county
jail and ordered her to serve 48 hours in custody as a condition of her probation. The
defendant asked the court to suspend the 48 hours' imprisonment, but the district court
found it did not have the authority to do so under the applicable sentencing statute. On
appeal, the defendant argued the district court had erred when it determined that K.S.A.
2011 Supp. 21-5414(b)(1) required her to serve 48 hours in custody before being placed
on probation.

The statute at issue in Skillern, K.S.A. 2011 Supp. 21-5414(b)(1), states:

"(b) Domestic battery is a:
(1) Class B person misdemeanor and the offender shall be sentenced to not less
than 48 consecutive hours nor more than six months' imprisonment and fined not less
than $200, nor more than $500 or in the court's discretion the court may enter an order
which requires the offender enroll in and successfully complete a domestic violence
prevention program, except as provided in subsection (b)(2) or (b)(3)."

The Skillern court determined the clear and unambiguous language of K.S.A. 2011 Supp.
21-5414(b)(1) required a district court to sentence the offender to not less than 48 hours'
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imprisonment but did not require the offender to serve any portion of the minimum
sentence before being granted probation. 48 Kan. App. 2d at 353-54.

In reaching that conclusion, the Skillern court considered K.S.A. 2011 Supp. 8-
1567(b)(1)(B) and 8-1567(b)(1)(A), which prohibited DUIs and contained similar
language to the domestic battery statute. 48 Kan. App. 2d at 353. K.S.A. 2011 Supp. 8-
1567(b)(1)(B) states that the offender "shall be sentenced" to at least 90 days'
imprisonment, and it also contained the additional requirement that a defendant "shall
serve" at least 5 consecutive days' imprisonment before probation. 48 Kan. App. 2d at
353. K.S.A. 2011 Supp. 8-1567(b)(1)(A) also provided that the offender "shall be
sentenced" to not less than 48 consecutive hours and "shall serve" at least 48 consecutive
hours' imprisonment or 100 hours of public service. 48 Kan. App. 2d at 353. The Skillern
court determined that the legislature knew how to require an offender to serve a
mandatory minimum sentence before becoming eligible for probation, but it had not done
so in K.S.A. 2011 Supp. 21-5414(b)(1). 48 Kan. App. 2d at 353. Because the domestic
battery statute had no provision requiring the offender to serve any portion of the
sentence, the district court erred when it determined it lacked the authority to suspend the
48-hour imprisonment requirement. 48 Kan. App. 2d at 353-55; see also State v. Frazier,
248 Kan. 963, 972, 811 P.2d 1240 (1991) (when defendant was a juvenile at the time he
committed the offense, he must be sentenced "pursuant to the Juvenile Offenders Code
and . . . is not subject to the mandatory five-day sentence pursuant to K.S.A. 1990 Supp.
8-262[a][3].").

The statute at issue here, K.S.A. 2010 Supp. 8-1567(f)(1), exemplifies the
legislature's requiring a defendant to actually serve a minimum sentence before being
released to probation. Hollie admits he did not complete the mandatory 90-day sentence.
Therefore, he was not yet eligible for probation when the district court held its hearing in
April 2014. See Skillern, 48 Kan. App. 2d at 355 ("The legislature knows how to require
a defendant to serve a portion of the minimum sentence before probation or a suspended
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sentence can be granted, as the legislature has indicated in other subsections of the
domestic battery statute and also in the DUI statute.").

The district court did not err when it determined that under K.S.A. 2010 Supp. 8-
1567(f)(1), Hollie had to finish serving his mandatory 90 days before becoming eligible
for probation.

Affirmed.