State v. Patton

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NOT DESIGNATED FOR PUBLICATION

No. 117,115

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DONNEY R. PATTON,
a/k/a/ DONNIE RAY HUBBARD,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed March 9,
2018. Sentence vacated and case remanded with directions.

Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before MALONE, P.J., SCHROEDER, J., and BURGESS, S.J.

PER CURIAM: Donney R. Patton pled guilty to aggravated assault and criminal
possession of a firearm. The district court granted a downward dispositional departure
and sentenced him to 24 months' probation with an underlying prison term of 43 months.
Patton was subjected to two "quick dip" sanctions in county jail for probation violations
before the State moved for revocation. The district court bypassed additional intermediate
sanctions and revoked Patton's probation, citing jeopardy to public safety. Patton timely
appealed. Finding that the district court did not sufficiently tie the extensive finding of
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facts made at the probation revocation hearing to the determination that Patton was a
threat to public safety, the revocation of probation must be vacated and the case
remanded for reconsideration of the motion to revoke.

FACTUAL AND PROCEDURAL BACKGROUND

Patton pled guilty to aggravated assault and criminal possession of a firearm by a
felon. His criminal history score was A. At sentencing in February 2014, the State
presented an agreed motion to the district court asking for a downward dispositional
departure to probation. The district court reluctantly granted the motion and sentenced
Patton to 24 months' probation with an underlying 43-month prison term. The district
court imposed as a condition of probation that Patton receive a mental health assessment
and medication evaluation from COMCARE and regularly take any prescribed
medications. The district court informed Patton that the probation conditions concerning
his mental health treatment were the most important.

Patton did not begin serving his probation until late 2015, because he was serving
parole holds until that time. Patton later moved to extend the probation term to February
2018, to allow him time to pay court costs of $648.

In February 2016 and June 2016, Patton tested positive for marijuana use and his
probation officer imposed "quick dip" jail sanctions each time. In November 2016, the
State moved to revoke Patton's probation on grounds that he (1) failed to provide proof of
payment toward court costs; (2) tested positive for PCP; (3) tested positive for marijuana;
(4) failed to obtain employment; and (5) failed to complete mental health treatment and
refused services from COMCARE. At the probation revocation hearing, Patton stipulated
to the first four violations and the first half of the fifth, but asserted that he did not refuse
services from COMCARE. His counsel explained that Patton did not refuse services but
instead, was told that he could leave after he told the counselor honestly that he did not
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believe he needed services. His counsel also highlighted that Patton never failed to report
or to register and always kept his probation officer informed of where he was staying.
Patton's counsel requested that the district court impose an intermediate sanction.

At the probation revocation hearing, the district court made approximately 20
factual findings and then revoked Patton's probation under the "public safety" exception
to the intermediate sanction requirements. The district court found that at the time of
sentencing, Patton was taking medications for anxiety, depression, and antipsychotic
medications; that he chose to discontinue use of the medications, without medical advice;
and that mental health treatment was central to the district court's award of probation. The
court further found that Patton was self-medicating with street drugs at the time of the
crime of conviction. The district court found that Patton had used PCP and marijuana
during his probation, including shortly after completing an outpatient drug program.
Finally, the district court found that this behavior showed that Patton could not or would
not deal with his substance abuse issues through the resources available to him.

The district court also found that Patton's LSI-R score for risk of reoffending was
at five on a six-point scale and that another evaluation placed him as needing the highest
level of supervision. It is unclear whether those evaluations were done at the time of
sentencing or for purposes of the probation revocation hearing.

At the probation revocation hearing, the State acknowledged that Patton was not a
danger to the public when he was taking medication, but it stated its concern that he was
not currently taking medication. The district court ultimately found that "the safety of the
members of the public will be jeopardized if he remains on probation" and revoked
Patton's probation.



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Standard of review

Two standards of review are applicable to probation revocation cases. In
determining whether a sanction was authorized by statute, we exercise de novo review,
because statutory interpretation is a question of law. See State v. Rocha, 30 Kan. App. 2d
817, 819, 48 P.3d 683 (2002). If revocation is an allowable disposition under the statute,
the decision whether to revoke is within the discretion of the district court and we will
reverse only if the court abused that discretion. Rocha, 30 Kan. App. 2d at 819. A judicial
action constitutes an abuse of discretion if (1) no reasonable person would take the view
adopted by the trial court; (2) it is based on an error of fact; or (3) it is based on an error
of law. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).

Discussion

Patton admitted violating his probation and acknowledged that he is subject to
sanction. The facts adduced at the probation revocation hearing concerning Patton's use
of drugs and failure to manage mental health issues could provide a reasonable basis for
revocation. The issue here, though, is whether revocation, without imposing further
intermediate sanctions, was allowable under K.S.A. 2016 Supp. 22-3716(c).

A district court's authority to revoke probation is limited by statute. The Kansas
Legislature has defined a scheme of graduated sanctions a district court must impose on
an individual prior to revoking probation. See K.S.A. 2016 Supp. 22-3716(c)(1)(A)-(E).
However, a district court may revoke probation without first imposing intermediate
sanctions if it "finds and sets forth with particularity the reasons for finding that the safety
of members of the public will be jeopardized or that the welfare of the offender will not
be served by such sanction." K.S.A. 2016 Supp. 22-3716(c)(9).

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The particularized-findings element of the statute requires that: (1) the findings
must be distinct, not general; (2) the findings must be stated with attention and concern to
the details; and (3) the district court must link the reasons for its action with the risk to
public safety if it does not impose a prison sentence. State v. Huskey, 17 Kan. App. 2d
237, 240, 834 P.2d 1371 (1992). We have alternately expressed the third prong as
requiring the district court to "find and explain why public safety would be
jeopardized . . . by imposing an intermediate sanction." State v. Wesley, No. 111,179,
2015 WL 3868716, at *5 (Kan. App. 2015) (unpublished opinion). Caselaw interpreting
the statute requires the district court to explicitly draw the connection between its factual
findings and its conclusion that returning the offender to probation poses a threat to
public safety. E.g., State v. Miller, 32 Kan. App. 2d 1099, 1102-03, 95 P.3d 127 (2004).

Here, the district judge made a large number of factual findings, concluding as
follows:

"Taking into consideration these findings and the Court's ongoing concerns, I am
going to find that [Patton] is a risk to public safety, and that, specifically, the safety of the
members of the public will be jeopardized if he remains on probation. And there are no
other feasible alternatives in the Court's opinion."

In the journal entry, the district court referenced the offender welfare exception
also. The journal entry states:

"Court makes offender welfare and public safety findings based on the following:
"1. Originally a departure.
"2. Violent person crime with a firearm.
"3. Per defendant's Motion for Departure—Due to defendant's mental health and
drug addiction, Court made specific orders in Journal Entry of Judgment in regard to
mental health and drug treatment.
"4. Defendant has served two County Jail Sanctions due to drug use.
"5. Defendant walked away from COMCARE treatment.
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"Court finds that defendant needs more structure than Community Corrections
Field Services can provide and imposes sentence."

Although the journal entry refers to the offender welfare exception, the district
court did not make any finding at the hearing that Patton's welfare would not be served
by the imposition of an intermediate sanction. The district court's ruling from the bench
controls over the journal entry. Patton argues that the district court's finding that
revocation was necessary on grounds of public safety was not supported by the record of
his behavior on probation. He argues that the district court's findings did not meet the
standards of K.S.A. 2016 Supp. 22-3716(c)(1).

The statute requires a district court to state an explicit link between its factual
findings and its ultimate finding regarding public safety. The State suggests
interpretations of the district court's ruling that might help show the necessary link.
Specifically, it argues that the district court revoked Patton's probation "based upon a
conglomeration of findings relevant to the larger issue of community safety." The State
also argues that "defendant's violation cannot be viewed in a vacuum; rather it is part of a
larger picture illustrating defendant's questionable psychological state." The State
continues its interpretation: "[T]he court opted to remove defendant from the community
when his violation indicated that he was beginning to travel the same non-medicated,
unsupervised road that possibly contributed to violent behavior." (Emphasis added.)

We have previously rejected attempts by the State to provide interpretations of a
court's findings to supply the missing link. E.g., State v. Padgett, No. 94,695, 2006 WL
3257450 (Kan. App. 2006) (unpublished opinion). In Padgett, the district court revoked
probation after listing the defendant's problems and incident reports while at a
correctional camp; it stated its view of the need for the probationer to satisfy all of his
responsibilities and advised the defendant that sometimes revocation is "'a step that has to
be taken as part of the process of correction and to get people on the right path.'" 2006
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WL 3257450, at *1. After agreeing that the district court could have been "thinking along
[the] lines" suggested by the State, we concluded that the ruling did not meet the
particularity requirement because the court failed to say what it was thinking to establish
a link. 2006 WL 3257450, at *2. We further stated that a court's expressed reasons should
be "clear enough that we are not required to strain to interpret the court's words as
complying with the statute." 2006 WL 3257450, at *2.

Here, Patton's drug use and mental health were the district court's primary
concerns. Patton had three positive drug tests in 2016. At the probation revocation
hearing, the district court stated that Patton's most recent use of illegal drugs occurred
shortly after an outpatient drug treatment program and was a relapse, but "it does indicate
an inability to deal with the substance abuse issues through the resources that have been
provided and that [Patton] apparently is [un]willing to avail himself of."

Similar language was used in State v. McFeeters, 52 Kan. App. 2d 45, 362 P.3d
603 (2015), and we found it insufficient to establish a link. There, the district court
revoked the defendant's probation because he did not go to substance abuse treatment.
We found that the district court's remarks about the defendant's "apparent unwillingness
or inability to conform his behavior to the requirements of probation" failed to explain
how public safety would be jeopardized if the defendant remained on probation or how
intermediate sanctions would fail to serve the defendant's welfare. 52 Kan. App. 2d at 49.
We explained that any link that might exist was only implied and, thus, not sufficient to
meet the particularity requirement of the statute. We concluded: "We will refrain from
substituting our inferences for the district court's legally required explanations." 52 Kan.
App. 2d at 49. Like here, the district court in McFeeters considered the defendant's LSI-R
report. Even though this was a specific factual finding concerning likelihood to reoffend,
we found that the district court did not expressly connect it to either of the statutory
exceptions. 52 Kan. App. 2d at 49.

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We also refused to supply a connection in Miller, where the district court revoked
the defendant's probation after finding that he failed to report to court services and had
used illegal drugs daily since being placed on probation. The district court observed that
Miller "'was unable to make it from the courthouse to court services, a half block [before
violating probation].'" 32 Kan. App. 2d at 1101. We held that the district court's mere
recitation of the defendant's drug abuse—severe as it was—was insufficient because it
did not explicitly draw what could be considered an obvious link to offender welfare and
did not explain why a lesser sanction would not serve the defendant's welfare. 32 Kan.
App. 2d at 1102-03.

The district court in Miller noted as part of its decision that the defendant had
received a "'significant break'" by being granted a downward dispositional departure to
probation. 32 Kan. App. 2d at 1101. Here, the district court's journal entry lists "departure
sentence" as the first reason for revocation. We made clear in Miller that dispositional
departure sentences are subject to the graduated sanctions system in K.S.A. 22-
3716(c)(1). 32 Kan. App. 2d at 1101. Therefore, we reject the State's argument that the
district court's prior leniency could support its decision on a probation revocation motion.
But see K.S.A. 2017 Supp. 22-3716(c)(9)(B) (added to statute in 2017; no intermediate
sanction required if probation was granted as a dispositional departure). The 2017
statutory amendment became effective after Patton's probation revocation hearing, and
we will not apply the amendment in Patton's current appeal.

The district court here did not discuss intermediate sanctions, except to state that
"there are no other feasible alternatives [to revocation]." This general statement falls short
of the requirement to explain how imposition of an intermediate sanction would
jeopardize public safety. It must be emphasized that "return to probation" does not
necessarily mean allowing the defendant out on the streets. When a probation violation is
found, the district court may sanction the defendant to a jail dip or a prison dunk. In this
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case, Patton had served two jail dips, so the district court could have imposed a 120- or
180-day prison dunk as an alternative to revocation.

In other cases, we have found that the district court stated a sufficient nexus. One
had facts similar to Miller but reached an opposite conclusion. State v. Harding, No.
110,677, 2014 WL 3630554 (Kan. App. 2014) (unpublished opinion). In Harding, the
district court made factual findings that defendant, inter alia, violated his probation three
days after sentencing by using cocaine; committed three other violations within 11 days;
admitted using methamphetamine and probably had an addiction; and had numerous
convictions for crimes of violence among his 36 or 37 convictions over his 30-year
criminal history. The court then stated that defendant's criminal history and inability to
comply with the rules of probation for "any period of time" rose to the level that he
would be a threat to public safety and to himself. 2014 WL 3630554, at *5. We found this
met the statutory requirement that the district court explain why public safety and
offender welfare would be impacted if the defendant were returned to probation.

It was easy for us to find that the particularity and nexus requirements were met in
State v. Rogers, No. 114,590, 2016 WL 7032242 (Kan. App. 2016) (unpublished
opinion), rev. denied 306 Kan. 1329 (2017), where the district court expressly stated that
it was making factual findings to show that the defendant's welfare would not be served
by an intermediate sanction. Among its findings were that Rogers had violated probation
four times in 20 months and that he engaged in "'continuous use of marijuana and other
illegal drugs while on probation.'" 2016 WL 7032242, at *3. The crucial link was stated
when the district court found that another intermediate sanction would "have no effect on
or be of any benefit to Rogers." 2016 WL 7032242, at *3. The district court's findings in
the instant case fall short of the specific expression of nexus in Rogers.

We lastly address Patton's argument that the district court's findings primarily
concerned his crime of conviction and prior crimes and that his actions while on
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probation did not provide a sufficient basis for revocation. Patton cites State v. Gary, 282
Kan. 232, 144 P.3d 634 (2006), for the proposition that the State is prohibited from using
a defendant's conduct prior to sentencing as the basis for revoking probation. In Gary, the
defendant committed a new crime after being convicted but before being sentenced.
When he was later charged with the crime, the State moved to revoke his probation. In
reversing the revocation, our Supreme Court reiterated that probation cannot be revoked
unless the probationer commits a violation of a probation condition. 282 Kan. at 238.
Because the defendant was not on probation at the time he committed the new crime, it
was not a probation violation and it could not be the basis to revoke probation. 282 Kan.
at 238.

Patton argues for an extension of Gary, specifically, that we should not permit acts
prior to sentencing to be used as the basis for a public safety finding to justify revocation.
We decline to reach this question, but note that many cases have considered a defendant's
prior actions in determining whether there is a risk to public safety and whether the
defendant's welfare would be served by remaining on probation.

In conclusion, the error here is not in the substance of the district court's decision,
but rather in its expression. The district court failed to make the particularized finding of
nexus between Patton's actions and a threat to public safety if he were sentenced to a
prison dunk instead of his underlying sentence. While this result may be putting form
over substance, K.S.A. 2016 Supp. 22-3716(c)(9) and the caselaw interpreting it require a
stringent compliance with form.

Sentence vacated and case is remanded for resentencing to an intermediate
sanction or for further findings of fact to support revocation of probation without
imposing an intermediate sanction.