Opinion
No. 108,683.
2013-11-1
STATE of Kansas, Appellee, v. Bryce Thomas MOORE, Appellant.
Appeal from Johnson District Court; James Franklin Davis, Judge. Scott C. Gyllenborg, Gyltenborg & Brown, P.A., of Olathe, for appellant. Betsey L. Lasister, legal intern, Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; James Franklin Davis, Judge.
Scott C. Gyllenborg, Gyltenborg & Brown, P.A., of Olathe, for appellant. Betsey L. Lasister, legal intern, Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., ARNOLD–BURGER, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Bryce Thomas Moore appeals his fifth driving under the influence (DUI) conviction. He argues that the Kansas Parole Board's (Board) decision to revoke his postrelease supervision in a prior DUI case (his fourth) based upon this fifth DUI along with his subsequent conviction on this charge resulted in a violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. Moore also challenges the district court's denial of his motion to compel the Board to produce the board members' notes from the hearing that resulted in revocation of his prior postrelease supervision. We conclude the district court correctly held no double jeopardy violation had occurred and Moore's second issue is moot. We affirm.
Moore's was convicted of DUI (third or subsequent offense) in 2009. In that case, the district court had sentenced him to 150 days in jail followed by 12 months of postrelease supervision (sometimes referred to as parole supervision). The present DUI occurred in 2010 while Moore was on postrelease supervision in the 2009 case. The Johnson County District Attorney filed the charge in the district court in June 2010.
Also in June 2010, the Board held a parole revocation hearing related to Moore's fourth DUI. It found Moore was guilty of six violations of the conditions of his postrelease supervision. One of the violations involved the present DUI charge even though the Johnson County District Court had not yet found Moore guilty of that charge. During the revocation hearing, the Board relied upon police reports, Moore's testimony, and Moore's signed admission of usage form and determined that Moore's 2010 DUI had occurred, which violated a condition of his postrelease supervision in his 2009 case. The Board revoked Moore's postrelease supervision in that case and ordered that he serve 6 months of incarceration.
In preparation for Moore's DUI trial in the present case, Moore subpoenaed documents from the Board's revocation hearing in the prior case. The Board provided copies of Moore's drug testing/admission of usage form signed in March 2010, his HIPPA compliant medical authorization form, his drug testing/admission of usage form signed in April 2010, his final violation hearing testimony request/waiver form, and the final action notice. The Board objected to Moore's request for the board members' notes, claiming the items were confidential, privileged, and generally not subject to disclosure under K.S.A. 22–3711. Moore filed a motion to compel the production of the notes. The district court denied the motion, reasoning that the official report controls and was properly provided to Moore.
In October 2011, Moore filed a motion to dismiss the 2010 DUI charge under the theory that he suffered a double jeopardy violation, as prohibited by both the United States and Kansas Constitutions. The district court denied the motion and found Moore guilty of the 2010 felony DUI charge.
On appeal, Moore again argues his conviction for DUI in the present case resulted in a double jeopardy violation. “The issue of whether there is a double jeopardy violation is a question of law subject to unlimited review.” State v. Gaudina, 284 Kan. 354, 369, 160 P.3d 854 (2007).
Moore contends he received multiple punishments for the same offense. He specifically argues the postrelease supervision revocation hearing amounted to an evidentiary hearing that found him “guilty” of driving under the influence in 2010; therefore, double jeopardy occurred when the district court then found him “guilty” again of the 2010 DUI. He also vaguely alleges that the Kansas Department of Corrections (KDOC) erred by waiting to revoke his postrelease supervision until after criminal charges for the 2010 DUI were filed in the district court. However, a point merely raised incidentally in a brief may be deemed abandoned. State v. Anderson, 291 Kan. 849, 858, 249 P.3d 425 (2011).
In opposition to Moore's double jeopardy argument, the State cites State v. Quarles, 13 Kan.App.2d 51, 54, 761 P.2d 317,rev. denied 244 Kan. 740 (1988). There, the district court had revoked a probation for drug-related conduct on the part of the defendant. While it is not entirely clear from the opinion, it appears the court also then later sentenced the defendant on charges relating to that drug activity.
While Quarks involved a prior revocation of probation by the district court and not a revocation of postrelease supervision by the Board as we have in the present case, the court in Quarles indicated in dicta that the distinction is one without a difference.
“With the exception of Snajder, these courts uniformly hold that, although a defendant is at risk at a probation or parole revocation hearing, the risk does not rise to the level of being ‘put in jeopardy’ in the constitutional sense because the revocation hearing is not equivalent to a criminal prosecution; in other words, the hearing is not a proceeding which could result in a conviction. United States v. Miller, 797 F.2d at 340. The purpose of a probation revocation hearing is not to punish a criminal for violation of the law, but rather to determine whether he has violated the conditions of his probation. The court's authority to revoke probation does not depend upon whether defendant's probationary conduct is criminal. State v. Rasler, 216 Kan. 292, 294–96, 532 P.2d 1077 (1975). Rather, the function of the court at the probation revocation hearing is to determine whether to impose or execute a sentence for an offense of which defendant has already been convicted and for which probation was granted. [Citation omitted.] (Emphasis added.) 13 Kan.App.2d at 54, 761 P.2d 317.
We have been unable to find a Kansas case dealing directly with whether double jeopardy applies in cases involving postrelease supervision revocation hearings as well as probation revocation hearings. However, the principle that double jeopardy does not apply to parole revocation situations is a fairly well-established across the United States. See, e.g., Poirier v. Doyle, 40 F. App'x 211 (7th Cir.2002) (double jeopardy does not apply when defendant acquitted of charge involving same actions used to revoke defendant's parole); Kell v. U.S. Parole Comm'n, 26 F.3d 1016, 1020 (10th Cir.1994) (double jeopardy does not apply to parole revocation proceedings); United States v. Whitney, 649 F.2d 296, 298 (5th Cir.1981) (same); People v. Gallegos, 914 P.2d 449 (Colo.App.1995) (same); State v. Black, 153 N.J. 438, 454–55, 710 A.2d 428 (1998) (same); State v. Sparks, 362 N.C. 181, 189–91, 657 S.E.2d 655 (2008) (parole revocation is akin to probation revocation and double jeopardy does not apply); Ex parte Peralta, 87 S.W.3d 642, 646 (Tex.App.2002) (noting 5th Circuit Court of Appeals found double jeopardy does not apply to parole revocation proceedings). Also, the United States Supreme Court has ruled that neither probation nor parole revocation proceedings are stages of a criminal prosecution. Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).
In sum, we know of no rationale why a revocation of postrelease supervision should be viewed differently from a revocation of probation in terms of whether the basis for the revocation bars a subsequent criminal prosecution for the acts that resulted in the revocation. Neither revocation proceeding is a part of a criminal prosecution. Again, the purpose of a revocation hearing is not to punish a person for violation of the law but rather to determine whether a violation of the terms of probation has occurred.
Since no double jeopardy violation occurred in this case, we know of no reason why the district court's refusal to order production of the Board members' notes has any relevance. Moore's issue in this regard is moot and we need not address it.
Affirmed.