State v. Volle

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NOT DESIGNATED FOR PUBLICATION

No. 115,354

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CHRISTOPHER BRYON VOLLE,
Appellant.


MEMORANDUM OPINION

Appeal from Shawnee District Court; EVELYN Z. WILSON, judge. Opinion filed December 23,
2016. Affirmed.

Debra J. Wilson, of Capital Appeals and Conflicts Office, for appellant.

Klint Spiller, legal intern, Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district
attorney, and Derek Schmidt, attorney general, for appellee.

Before POWELL, P.J., PIERRON and HILL, JJ.

POWELL, J.: Christopher Bryon Volle appeals the district court's revocation of his
probation and imposition of his underlying sentence. Volle was placed on probation after
having pled no contest to two counts of aggravated battery, which were the result of a
disturbance involving his wife. Several months later, after threatening his now ex-wife,
Volle was arrested and the State sought to revoke his probation. After a hearing, the
district court revoked Volle's probation and imposed the underlying prison sentences, in
part on the grounds that Volle's military training made him a public safety threat. While
we disagree with the district court that under the facts presented Volle's military training
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made him a public safety threat, because there were other grounds supporting the
revocation of Volle's probation, the district court did not abuse its discretion and,
therefore, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2015, Volle pled no contest to two counts of aggravated battery against
his wife, Stephanie Volle. In exchange for Volle's plea, the State agreed to dismiss five
additional counts and recommend probation. The district court sentenced Volle to
consecutive sentences of 36 months and 32 months respectively, for a total of 68 months'
imprisonment. After taking into account Volle's military service and other factors, the
district court placed him on probation for 36 months.

In December 2015, Volle telephoned Stephanie, now his ex-wife, and during the
ensuing argument yelled at Stephanie and threatened to kill her and her family members.
Stephanie, concerned for her safety, called the police. That same day, Volle met with a
cousin in Atchison County, Kansas. Volle showed his cousin a knife and asked her about
certain people. Volle's cousin was concerned that Volle might hurt someone, but she did
not contact law enforcement. Volle was later found sitting in his car and was arrested on
a warrant for the new charges filed in Shawnee County resulting from his threats to
Stephanie. After Volle's arrest, an Atchison County Sheriff's Deputy contacted and met
with Volle's cousin, who told the deputy that Volle had threatened to hurt a man and that
Volle had trash bags, plastic wrap, gloves, duct tape, zip ties, and a large machete-type
knife in his car. Deputies found many of these items in Volle's car.

The State moved to revoke Volle's probation on the basis that Volle had failed to
remain a law abiding citizen, failed to refrain from having violent contact with Stephanie,
and left Shawnee County without prior approval. After an evidentiary hearing at which
the State presented evidence of Volle's probation violations, the district court found Volle
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had violated the terms of his probation. The district court then heard arguments from the
State and Volle concerning future disposition. The State urged the district court to revoke
Volle's probation and impose the underlying prison sentences, specifically because Volle
had committed a new crime and imposing an intermediate sanction would jeopardize
public safety based on the violent nature of Volle's offense and the items found in his car.

Volle offered his military service and his struggles with posttraumatic stress
disorder (PTSD) as mitigating factors. In support, Volle presented two witnesses who
testified about PTSD in general and Volle's experience with a program designed to help
veterans with PTSD. Stephanie said that she supported Volle getting help; that she did
not know if he would get the help he needed in prison; and that when Volle was receiving
treatment, going to meetings, and taking his medications, he did very well. Volle's
probation officer recommended that Volle receive a 3-day quick dip, with time served,
and be ordered to complete treatment. Volle also introduced his PTSD service dog to the
court.

The district court began by recognizing Volle's military service, stating that it was
grateful for all that Volle had done for his country. But the district court also told Volle:
"I have to look at all of the evidence and I will. Because I know that part of that evidence
is that, before you went to Iraq, you were trained by experts on how to kill people, that
was part of your training." Based on this finding and noting that (1) several potentially
dangerous and suspicious items had been found in Volle's car, (2) Volle had threatened to
kill someone, (3) Volle had stopped taking his medications, (4) Volle had stopped going
to meetings, and (5) it appeared Volle's service dog was not with him on the night he was
arrested, the district court found that public safety would not be served by imposing an
intermediate sanction. The district court also found that Volle had committed a new crime
while on probation. After making these findings, the district court revoked Volle's
probation and imposed the underlying prison sentences.

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Volle timely appeals.

DID THE DISTRICT COURT ABUSE ITS DISCRETION
BY REVOKING VOLLE'S PROBATION?

Volle claims the district court abused its discretion by imposing his underlying
sentences instead of an intermediate sanction. Specifically, he claims the district court
made a legal error by referencing Volle's military service and experience, which typically
is considered a mitigating factor, when finding that public safety would be jeopardized by
imposing an intermediate sanction. Volle contends that because of this error, the
revocation of his probation and imposition of the underlying prison sentences was an
abuse of the district court's discretion.

Probation is "'an act of grace by the sentencing judge and, unless otherwise
required by law, is granted as a privilege and not as a matter of right.' [Citations
omitted.]" State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once the State has
proven that the offender committed a probation violation, "revocation is in the sound
discretion of the district court." State v. Walker, 260 Kan. 803, 808, 926 P.2d 218 (1996).
A court abuses its discretion if (1) no reasonable person would have taken the view
adopted by the court; (2) the action was based on an error of law; or (3) the action was
based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). The
offender bears the burden of proving an abuse of discretion. State v. Stafford, 296 Kan.
25, 45, 290 P.3d 562 (2012).

K.S.A. 2015 Supp. 22-3716(c) provides that before ordering an offender to serve
his or her underlying prison sentence, the district court should generally impose an
intermediate sanction. The district court, however, may revoke an offender's probation
without 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
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welfare of the offender will not be served by such sanction." K.S.A. 2015 Supp. 22-
3716(c)(9). Intermediate sanctions are also unnecessary if the offender committed a new
felony, misdemeanor, or absconded from supervision while on probation. K.S.A. 2015
Supp. 22-3716(c)(8); see State v. Brown, 51 Kan. App. 2d 876, 885, 357 P.3d 296 (2015).

Citing cases involving sentencing issues from other jurisdictions, Volle claims that
military service is generally regarded as a mitigating factor. See Ploof v. State, 75 A.3d
840, 855 (Del. 2013) (counsel reasonably concluded defendant's military service
mitigating evidence); Farmer v. State, 772 N.E.2d 1025, 1027 (Ind. App. 2002)
(defendant's military service mitigating factor), abrogated on other grounds by Bethea v.
State, 983 N.E.2d 1134 (Ind. 2013). He also points out that the United States Supreme
Court found that defense counsel's failure to introduce the defendant's military service as
mitigating evidence in a death penalty case was sufficiently deficient, in part, to overturn
a death sentence. See Porter v. McCollum, 558 U.S. 30, 43-44, 130 S. Ct. 447, 175 L. Ed.
2d 398 (2009); see also Jackson v. Dugger, 931 F.2d 712, 717 (11th Cir. 1991) ("We
believe that Jackson's military service is in and of itself a significant mitigating
circumstance."). Volle also notes that under Kansas law PTSD connected to military
service is included in a nonexclusive list of mitigating factors that a district court may
consider when deciding whether to impose a departure sentence. See K.S.A. 2015 Supp.
21-6815(c)(1)(F). According to Volle, while the district court was not required to impose
an intermediate sanction because of his military service or his service-related PTSD, the
district court was precluded as a matter of law from considering either of those factors as
aggravating. Volle cites additional out-of-state authority in support of this proposition.
See Miller v. State, 373 So. 2d 882, 885 (Fla. 1979) (impermissible for sentencing court
to invoke defendant's mental illness, a mitigating factor, as aggravating factor in support
of imposing the death penalty); State v. Legendre, 522 So. 2d 1249, 1252-53 (La. App.
1988) (impermissible for sentencing court to cite defendant's mental illness, a mitigating
factor, to impose aggravated sentence).

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The State sides-steps Volle's argument and contends that the use of aggravating
and mitigating factors does not apply to probation revocation proceedings. It principally
relies on our Supreme Court's opinion in Abasolo v. State, 284 Kan. 299, 305, 160 P.3d
471 (2007), which held that in the context of a district court's authority to impose a lesser
sentence at a probation revocation hearing, K.S.A. 22-3716, the probation revocation
statute, "does not impose any additional restrictions on the district court's discretion as to
the sentence that may be imposed at the time of the probation violation hearing." The
State's brief also cites to State v. Ardry, 295 Kan. 733, 736, 286 P.3d 207 (2012), in
which our Supreme Court held that "[b]ecause a district court may impose a lesser
sentence without stating a reason or even by mistake, a district court certainly does not
need new or different mitigating factors in order to impose a lesser sentence." Instead, the
State argues, citing K.S.A. 2015 Supp. 21-6815, mitigating and aggravating factors only
apply to sentencing departures.

First, we are inclined to agree with the State that a district court is not hampered
by the rigid consideration and weighing of permissible aggravating and mitigating factors
in determining whether an offender's underlying sentence should be imposed upon
revocation of probation because unlike the sentencing guidelines, which intend to ensure
comparable sentences upon similarly situated defendants, district courts, subject to
K.S.A. 22-3716, have unfettered discretion in probation revocations once a probation
violation has been proven. 295 Kan. at 736; see also State v. Hernandez, No. 101,789,
2009 WL 4035560, at *1 (Kan. App. 2009) (unpublished opinion) (district court not
required to consider whether mitigating factors outweigh offender's probation violations
before revoking probation and imposing sentence).

However, we need not definitively answer this question because even if we
accepted Volle's assertion that military service or service-related PTSD should never be
considered as aggravating factors in probation revocation hearings, we note the district
court's comments did not center on Volle's military service or that he now suffers from
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PTSD as a result of that service but, rather, on his military training or skills, specifically
that he had been "trained by experts on how to kill people." We approve of the approach
adopted by one federal appeals court which held that there is a difference between a
defendant's military service and the skills such defendant acquires during the course of a
lifetime, including skills acquired in the military, and it is not always inconsistent to use
the former in mitigation and the latter in aggravation. United States v. Runyon, 707 F.3d
475, 503 (4th Cir. 2013) (permissible for defendant to invoke his military service to
mitigate his culpability; permissible for prosecution to argue defendant exploited skills
acquired during such service to commit the crime).

Second, and perhaps more pertinent to Volle's real complaint, we hold that the
district court's finding that his military training on "how to kill people" to support its
conclusion that Volle constituted a public safety risk is unsupported by the record. In fact,
the record is devoid of any facts that would tie Volle's military training to being a danger
to the community. In the one instance where we did find a court utilized military training
as an aggravating factor—again in the sentencing context—that court did so only because
it could tie specific aspects of the defendant's military training to skills which would have
enabled the defendant to commit the crime. Runyon, 707 F.3d at 503. The district court
did not do that here. Instead, the district court made a broad and completely unsupported
statement that Volle's military training, which taught him "how to kill," in conjunction
with other facts, rendered him a public safety risk. While we presume the district judge
here probably did not intend her comments to mean as they appear in the record, we must
condemn them as unnecessarily slanderous against anyone who served in the military.
See Williams v. Kemp, 846 F.2d 1276, 1283 (11th Cir. 1988) (condemning prosecutor's
statement in closing that United States Marines were trained to kill to point of enjoying
it). It was error for the district court to include Volle's military training as a fact
supporting its finding that Volle constituted a public safety risk.

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Third, notwithstanding the district court's unfortunate comments about Volle's
military training, the district court's other factual findings support its conclusion that
Volle is a danger to public safety, rendering the district court's error harmless as to the
ultimate result. See K.S.A. 2015 Supp. 60-261; State v. Kennon, No. 102,936, 2010 WL
3662890, at *2 (Kan. App. 2010) (unpublished opinion) (applying harmless error
standard of K.S.A. 60-261 in probation revocation case). The district court's public safety
findings noted that (1) several potentially dangerous and suspicious items had been found
in Volle's car, (2) Volle had threatened to kill someone, (3) Volle had stopped taking his
medications, (4) Volle had stopped going to meetings, and (5) it appeared Volle's service
dog was not with him on the night he was arrested. Such facts considered without regard
to Volle's military training are sufficient to support the district court's finding that public
safety would not be served by imposing an intermediate sanction.

Moreover, the district court's decision to impose Volle's underlying prison
sentence instead of an intermediate sanction is supported by its alternative finding that
Volle had committed a new crime while on probation. As previously noted, the
commission of a new crime is alone sufficient justification for a district court to order an
offender to serve his or her underlying prison sentence without first imposing an
intermediate sanction. K.S.A. 2015 Supp. 22-3716(c)(8). Evidence from the show cause
hearing supports the finding that Volle committed the crime of criminal threat. As a
result, the district court did not abuse its discretion in revoking Volle's probation and
imposing the underlying prison sentences.

Affirmed.