Opinion
No. 108,433.
2013-08-23
STATE of Kansas, Appellee, v. Mark LEDESMA, Appellant.
Appeal from Johnson District Court; Stephen R. Tatum, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Stephen R. Tatum, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., McANANY and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Mark Ledesma appeals from the district court's order revoking his probation and ordering him to serve his underlying prison sentence. The district court found that Ledesma violated the terms of his probation by failing to report to the Johnson County Community Corrections Residential Center. Ledesma contends it was impossible for him to comply because he was incarcerated on a conviction in Wyandotte County for a crime that predated his crime in our current case.
On May 2, 2007, and pursuant to a plea agreement that resulted in other charges being dismissed, Ledesma pled guilty in Johnson County District Court to attempted aggravated burglary and burglary.
On June 21, 2007, the district court held a sentencing hearing. The court was aware that there were outstanding warrants at the time from Wyandotte and Leavenworth Counties for Ledesma's arrest and that charges were pending against him in Wyandotte County. (The Wyandotte County case was listed in Ledesma's presentence investigation report.) The court sentenced Ledesma to 27 months' imprisonment but granted probation, the presumptive sentence. Ledesma was to report to the community corrections residential center. The court told Ledesma: “As soon as those warrants [in Wyandotte and Leavenworth counties] are taken care of you come back here and you report to the Residential Center.”
On September 27, 2007, the court held a hearing on the State's contention that Ledesma had violated his probation. Ledesma conceded that he had failed to report to the residential center and to make required payments. Ledesma's counsel stated:
“[W]e knew at the time [of Ledesma's pleas] he had warrants. He had one in Leavenworth that has been dismissed. And then he has one in Wyandotte County for burglary that occurred, I believe, even prior to this one. So it's not something that happened after this happened here.
“He is going to take care of that. Once he does (unintelligible). It's my understanding the State's going to reinstate for 12 months and that will take care of that.”
The court reinstated Ledesma's probation for an additional 12 months.
On February 14, 2008, the State moved to revoke Ledesma's probation, alleging:
“On October 02, 2007, the Defendant was transported from Johnson County Adult Detention Center to Wyandotte County Adult Detention Center to satisfy [an] outstanding detainer. To date the Defendant remains in Wyandotte County custody satisfying the detainer, therefore the Defendant is unable to report as ordered.”
The State later amended this motion to add that Ledesma had additionally violated his probation by obtaining a conviction for aggravated burglary on June 16, 2008, in Wyandotte County. Ledesma's offense in the Wyandotte County case occurred on January 13, 2007, before the proceedings in the present case.
On November 6, 2008, the court conducted a hearing on the State's motion. Ledesma's probation supervisor testified that Ledesma had never reported to the residential center as required because he was in prison for the aggravated burglary which was the basis for his Wyandotte County conviction. Ledesma had been in custody in either Johnson County, Wyandotte County, or with the Department of Corrections the entire time since he was sentenced in Johnson County. Ledesma was expected to be released from prison in February 2014.
Ledesma's counsel argued, “[I]f he goes and finishes his DOC time and there is a hold on him he will be back here and be on probation when he is done. That's my suggestion.”
The court found Ledesma violated the terms of his probation by failing to report. The court also noted that Ledesma will not be amenable to probation until he completes his current prison sentence in 2014. The court revoked Ledesma's probation and ordered him to serve his underlying 27–month prison sentence. Ledesma appeals.
Unless required by law, probation is granted as a privilege and not as a matter of right. Once a probation violation has been established, the decision to revoke probation is within the sound discretion of the district court. State v. Skolaut, 286 Kan. 219, 227–28, 182 P.3d 1231 (2008); State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
In State v. Snow, 24 Kan.App.2d 117, 123, 942 P.2d 57 (1997), rev. denied 262 Kan. 968 (1997), the court held that revocation for failing to comply with the conditions of probation does not require fault by the probationer. There, probation was conditioned on Snow being accepted into Labette Correctional Conservation Camp. When Snow's application to Labette was denied for medical reasons, the district court revoked probation and sent Snow to prison. A panel of this court affirmed the revocation and the imposition of the underlying prison term, stating:
“The fact that Snow did nothing voluntary to violate one of the conditions of his assignment to community corrections is immaterial. The district court has the ability to set the conditions of probation or assignment to community corrections and if those conditions are not met, it provides cause for revocation. [Citations omitted.]” 24 Kan.App.2d at 123.
But in State v. Hymer, 27 Kan.App.2d 1054, 11 P.3d 94 (2000), rev'd on other grounds271 Kan. 716, 26 P.3d 63 (2001), the district court sentenced the defendant to probation with community corrections and placed him in jail for 30 days to await an open bed at the residential center. When 30 days passed and no bed space became available, the district court revoked Hymer's probation and sent him to prison, even though his conviction and criminal history score called for presumptive probation. On appeal, the court reversed, stating: “The difficulty in this case is that Hymer's probation was revoked through no fault of his own due to the unavailability of a placement in community corrections.” 27 Kan.App.2d at 1056.
The Hymer court noted that when bed space at the residential center did not become available within 30 days, the district court could either release Hymer from the county jail to await an open bed or modify his sentence to impose a more lenient probation. The Court of Appeals emphasized that a district court may not revoke probation unless it appears that the defendant has violated the terms or conditions of probation. 27 Kan.App.2d at 1056.
The Hymer court discussed the decision in Snow and noted a key distinction between Snow's circumstances and Hymer's circumstances. Hymer's presumptive sentence was probation, while Snow's presumptive sentence had been incarceration. When the district court revoked Hymer's probation and ordered incarceration, it departed from the presumptive sentence without a finding on the record of a substantial and compelling reason for the departure. This violated the procedure laid out in K.S.A. 21–4716(a). Like Hymer, Ledesma's presumptive sentence was probation.
In State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006), the defendant was charged with attempted robbery less than 1 month after receiving probation for other crimes. Though the conduct which led to the new charge occurred before Gary was placed on probation, the district court used the new charge as a basis for revocation. On appeal, our Supreme Court held that conduct prior to the imposition of probation does not constitute a violation of the terms of probation and therefore cannot be the basis for a revocation of that probation. 282 Kan. at 241. In our case, Ledesma was unable to report for probation because of his incarceration for a prior crime. Ledesma argues:
“[B]ecause it was impossible for Mr. Ledesma to report to the residential center due to his incarceration in a case that stemmed from conduct that occurred prior to the beginning of Mr. Ledesma's probation term, the district court's revocation had the effect of punishing Mr. Ledesma for conduct that occurred prior to the beginning of his probation term.”
On the other hand, the State relies on State v. Portillo, No. 91,245, 2004 WL 2085734 (Kan.App.2004) (unpublished opinion), rev. denied 219 Kan. 1009 (2005), in which the court held that a probationer's failure to report due to deportation provides an adequate ground to revoke probation. Portillo, who was serving probation, was deported to Mexico. He then illegally reentered the United States and was brought before the district court for a second probation revocation hearing. The district court revoked Portillo's probation for failing to report while he was in Mexico.
Portillo's initial illegal entry into the United States merely created the status offense of being in the country illegally. But his illegal reentry into the country after being deported was a criminal act that occurred while he was on probation. See State v.. Martinez, 38 Kan.App.2d 324, 331, 165 P.3d 1050 (2007). In our case, Ledesma apparently committed no new crime while on probation.
We find the unpublished opinion in State v. Reineke, No. 94,028, 2006 WL 2465459 (Kan.App.2006) (unpublished opinion), to be instructive. In Reineke, the court granted the defendant presumptive probation. Reineke was to report to his community corrections officer as directed. Reineke was then sent to prison for some earlier crimes. Because this prevented Reineke from reporting to community corrections, his probation was revoked.
On appeal, the Reineke court held that the district court abused its discretion because there was no evidence that the defendant was ever directed to report while in jail and because it was impossible for the defendant to report while in jail. The Court of Appeals noted that because it was impossible for the defendant to report because he was in jail for a previously committed offense, revoking his probation for failure to report was tantamount to revoking his probation because of a previously committed offense, which is an impermissible ground for revocation. 2006 WL 2465459, at *4.
Here, like in Reineke, Ledesma was incarcerated for a crime that occurred before he was placed on probation in the current case. Ledesma was sent to prison in his Wyandotte County case after he was sentenced to probation in his Johnson County case.
Further, Reineke was ordered to report to community corrections as directed. This was a key fact for the Reineke panel. It found that Reineke was never directed to report; therefore, the district court abused its discretion by finding he had violated his probation by failing to report. Here, the court told Ledesma: “As soon as those warrants [in Wyandotte and Leavenworth counties] are taken care of you come back here and you report to the Residential Center.”
Ledesma's obligation to report to the residential center was conditioned on him first taking care of the outstanding warrants. From the time he was granted probation in Johnson County, Ledesma was never out of State custody so as to allow him to report to community corrections. The Wyandotte County warrant was never “taken care of.” It resulted in Ledesma being transferred to Wyandotte County where he was convicted and sent to prison for criminal conduct predating his probation in our present case. Because the condition upon which Ledesma's duty to report was predicated never occurred, the district court erred in finding that Ledesma violated the terms of his probation by failing to report.
Reversed.