Opinion
111,119.
01-30-2015
STATE of Kansas, Appellee, v. Daved L. LITTRELL, Appellant.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Elizabeth Baskerville Hiltgen, county attorney, and Derek Schmidt, attorney general, for appellee.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.
Elizabeth Baskerville Hiltgen, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., PIERRON and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
David L. Littrell appeals the revocation of his probation. In particular, he contends that because this was his first probation violation, the district court should have imposed an intermediate sanction under K.S.A.2013 Supp. 22–3716(c)(1)–(2) instead of ordering him to serve an underlying 68–month prison sentence. We conclude the district court had substantial evidence to support its findings that Littrell posed a public danger and would not benefit from continued probation. Accordingly, we affirm.
Factual and Procedural Background
In 2012, David L. Littrell, a 39–year–old man, engaged in ongoing sexual misconduct with a teenage girl. The two would meet at Littrell's apartment after the girl had concluded the school day, and they would lie down together and hug and kiss. Littrell had the girl send him a nude photograph of herself, which he showed to a friend. Littrell claimed that he had proposed to the girl and that she had accepted, but he admitted to police that the pair had kept their relationship a secret from her parents.
Littrell was arrested and charged with two counts of indecent liberties with a child (K.S.A.2013 Supp. 21–5506 [a][1] ), and three counts of sexual exploitation of a child (K.S.A.2013 Supp. 21–5510 [a][1] ). On April 4, 2013, as part of a plea agreement, Littrell pled no contest to two counts of indecent liberties with a child and one count of sexual exploitation of a child. The State dismissed the remaining charges.
Before sentencing, Littrell underwent a psychosexual evaluation which included tests to determine the likelihood that he would reoffend. These tests revealed that Littrell was in the moderate category for sexual recidivism but at a high risk for reoffending generally. Specifically, the evaluator opined that while there was some risk Littrell would reoffend sexually, some assistance with education, employment, finances, hobbies, mental health, and companionship could decrease his high dynamic risk. The evaluator recommended that Littrell be required to work 40 hours a week and, if unemployed, submit documentation showing that he was seeking employment.
Littrell moved for a downward-dispositional departure to probation. Because Littrell's convictions placed him in the border box between prison and probation and he had no previous sexual offenses, he argued that his low likelihood of reoffending demonstrated that he could be successfully managed and rehabilitated on probation. The State joined in Littrell's recommendation for probation.
The district court granted Littrell's motion. On June 6, 2013, Littrell was sentenced to a controlling probation term of 36 months with a 68–month underlying prison sentence. Numerous special conditions of probation were imposed on Littrell. These conditions included participation in sex-offender-management and treatment programs; no contact with minors; random drug and alcohol tests; mental-health screening and compliance with recommended treatment; no use of drugs or alcohol; completion of 50 hours of community service; maintaining employment; no contact with the victim; sex offender registration; compliance with psychosexual-evaluation recommendations; and monthly payments toward court fees.
Three months later, in September 2013, the State moved to revoke Littrell's probation. Numerous violations were alleged, including that Littrell had missed a sex-offender-treatment session and when he did attend sessions he refused to participate and acted with hostility. As a result, his sex-offender-treatment counselor rated Littrell's risk of reoffending as “high” in the areas of rejection of supervision and hostility. Additionally, Littrell allegedly told his probation officer he had been laid off from his job when, in fact, he had been fired for missing work; he had refused to submit to drug tests on two separate occasions; he failed to complete 30 hours of community service for every week he was unemployed, and he had failed to pay his court costs. Given these violations, the State argued that revoking Littrell's probation was necessary to prevent him from reoffending and jeopardizing public safety.
At the hearing on the State's motion to revoke Littrell's probation, his probation officer testified that revocation was appropriate because Littrell had no place to live and could be a danger to public safety since he was not complying with his probation and was lying to his probation officer. The probation officer also testified that Littrell could not successfully complete probation or benefit from it because he was not participating in treatment.
Littrell disputed the State's allegation that he had lied about being laid off. He testified he had only left work because of overstaffing or when he was sick. Littrell also claimed he only missed one drug test—not two—and missed that test only because he was dehydrated from the heat. Littrell said he missed his sex-offender treatment once because he could not pay for it after he was laid off and once before that because it conflicted with work. He said he did not participate in group therapy because he had not been raised to talk to people about his problems.
After considering the evidence, the district court found that Littrell had violated his probation conditions as alleged by the State. Accordingly, the district court granted the State's motion to revoke Littrell's probation and ordered him to serve a prison term of 68 months. The district court also specifically found that sentencing Littrell to imprisonment was necessary for the public's safety and that extending his probation would not benefit him.
Littrell appeals.
Discussion
Littrell contends the district court erred by revoking his probation for his first probation violation without first imposing an intermediate sanction under K.S.A.2013 Supp. 22–3716(c)(1)–(2).
K.S.A.2013 Supp. 22–3716(c)(1)–(2) requires the district court to impose penalties other than the underlying sentence on a defendant who violates the conditions of his or her probation for the first time unless the court makes certain findings under subsection (c)(4). Under K.S.A.2013 Supp. 22–3716(c)(4), the district court may order a defendant to serve his or her underlying sentence for a first-time probation violation if it specifically finds that public safety will be jeopardized if probation is not revoked or that the defendant's welfare will not be served by continuing probation:
“(c)(4) The court may require an offender for whom a violation of conditions of release or assignment or a nonprison sanction has been established as provided in this section to serve any time for the sentence imposed or which might originally have been imposed in a state facility in the custody of the secretary of corrections without a prior assignment to a community correctional services program if the court finds and sets forth with particularity the reasons for finding that the safety of the members of the public will be jeopardized or that the welfare of the inmate will not be served by such assignment to a community correctional services program.”
Littrell candidly concedes the district court made the required findings under subsection (c)(4) that permitted it to revoke his probation for a first-time violation, but he contends there was insufficient evidence the public's safety would be jeopardized or his welfare not served by continuing his probation.
To the extent that Littrell's challenge requires our court to review the language of the probation-revocation statute, this court engages in unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014). Because Littrell claims the district court erred in finding that he presented a danger to the public and he would not benefit from further probation, he is challenging the district court's findings of fact. This court reviews a district court's factual findings to ensure that they are supported by substantial evidence, which is evidence that a reasonable person would accept as sufficient to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012) ; State v. Jester, No. 111,058, 2014 WL 5313705, at *3 (Kan.App.2014) (unpublished opinion), petition for rev. November 10, 2013. In reviewing findings of fact, our court does not reweigh the evidence, assess conflicting evidence, or judge the credibility of witnesses. State v. Gant, 288 Kan. 76, 80, 201 P.3d 673 (2009), overruled on other grounds by State v. Sampson, 297 Kan. 288, 301 P.3d 276 (2013) ; State v. Whin, 46 Kan.App.2d 570, 572, 264 P.3d 686(2011).
Finally, our court reviews a district court's ultimate decision to revoke a defendant's probation for an abuse of discretion. See State v. Skolaut, 286 Kan. 219, 227–28, 182 P.3d 1231 (2008) ; State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). A district court abuses its discretion when it bases its decision on an error of fact or law or when it makes a decision that no reasonable person could agree with. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).
Having carefully reviewed the record, we conclude the district court's findings were supported by substantial evidence and the district court did not abuse its discretion in revoking Littrell's probation and ordering imprisonment.
First, individuals familiar with Littrell's performance on probation expressed concern that Littrell would endanger the public by reoffending if he were not incarcerated. For example, his probation officer was concerned that Littrell's behavior showed that he could not be appropriately supervised while on probation. Littrell's therapist testified he was hostile during sex offender therapy and did not participate in the group sessions. As a consequence, Littrell posed a risk of reoffending. Of note, these opinions were consistent with the presentence psychosexual evaluation of Littrell, which suggested that his risk for recidivism could increase if he was not working full time—as was the case when his probation was revoked.
Littrell counters that he had only been unemployed for 3 weeks at the time he was arrested for violating his probation. But the evidence showed that Littrell had failed to report to his most recent job and had left early from scheduled shifts. Moreover, Littrell presented no evidence that he had sought new employment after being fired or that he was using his time off to complete his community service requirement. Considered together, the district court had substantial evidence to conclude that Littrell presented an increasing danger to the public if his probation was reinstated.
Second, substantial competent evidence also supported the district court's finding that reinstating Littrell's probation would not benefit him. Although Littrell had only been on probation for 3 months, he had already violated its conditions in numerous ways—failing to submit to drug tests, failing to maintain employment, lying to his probation officer, failing to pay court costs on the monthly payment plan he had agreed to, failing to attend and participate in therapy, and failing to follow the recommendations of his therapists and evaluators.
Littrell attempted to explain away these violations, but the district court chose not to believe his version of the events; and that court is in a better position to determine a witness' credibility than an appellate court. See Drach v. Bruce, 281 Kan. 1058, Syl. ¶ 6, 136 P.3d 390 (2006), cert. denied 549 U.S. 1278 (2007).
The evidence showed Littrell was not benefitting from probation. Specifically, he was not participating in treatment designed to improve his mental health and reduce his likelihood of reoffending, nor was he complying with the terms of the probation designed to ensure he received necessary supervision. The district court had substantial evidence to conclude that Littrell was not amenable to probation and would not benefit from reinstatement of it.
We are convinced it was within the district court's discretion whether to revoke Littrell's probation for his first violation because the district court satisfied the statutory criteria for revoking a defendant's probation for a first probation violation. See State v. Walker, 24 Kan.App.2d 145, 146, 942 P.2d 649 (1997) (noting that once a probation violation has been established, the decision to revoke probation is within discretion of district court); Jester, 2014 WL 5313705, at *3 (explaining that discretion is now limited by K.S.A.2013 Supp. 22–3716 [c] ).
We conclude that a reasonable person could agree that a sex offender who did not comply with the conditions of his probation should be required to serve his underlying prison sentence instead of being allowed to remain on probation, especially when the individual received a more lenient probation sentence at the outset, and when therapists and his probation officer were concerned that his failure to comply with the conditions of probation increased the likelihood that he would reoffend. Accordingly, the district court did not err by revoking Littrell's probation and ordering him to serve his prison sentence.
Affirmed.