Opinion
No. 110,842.
2014-12-12
STATE of Kansas, Appellee, v. Les Paul BEDDINGFIELD, Appellant.
Appeal from Lyon District Court; W. Lee Fowler, Judge.Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.Jonathon L. Noble, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Lyon District Court; W. Lee Fowler, Judge.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant. Jonathon L. Noble, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., BRUNS, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Les Paul Beddingfield pled no contest to attempted burglary of a dwelling and was granted probation to community corrections. Later the district court revoked the probation and ordered that Beddingfield serve the prison sentence previously imposed because he had violated conditions of his probation. Beddingfield appeals the revocation arguing three issues: There was insufficient evidence to support the finding that he committed new crimes; the district court abused its discretion; and the court incorrectly denied him jail-time credit for 3 days he had served in jail prior to the revocation. We find there was sufficient evidence to support the revocation and the court did not abuse its discretion. We affirm the order of revocation. We further find that the court erred in not giving jail-time credit for the days claimed by Beddingfield. We reverse and remand the case to the district court with instructions to grant credit for 3 additional days for the time served in jail prior to the revocation.
Facts
On July 25, 2013, the district court sentenced Beddingfield to 9 months imprisonment, suspended the sentence, and ordered that he serve 12 months' probation under the supervision of community corrections. Beddingfield was then placed on intensive supervision probation.
Beddingfield did not get off to a good start as far as making his appointments with the probation supervision office. He also subsequently violated the terms of his supervision on several more occasions.
To begin with, he failed to show for his initial intake appointment on July 29, 2013. Intensive Supervision Officer (ISO) Beverly Hilbish asked Deputy Gerald Ingalls to locate Beddingfield in order to bring him in for an appointment. They did not find Beddingfield at the residence he initially provided to community corrections. An officer found him a short time later and placed him under arrest and in jail as a sanction for missing the initial intake appointment. Hilbish was able to complete the intake appointment while Beddingfield was in jail, and on August 6, 2013, she reviewed the probation conditions with him. Beddingfield did not have any questions about the conditions and signed his initials next to each provision. However, on August 22, 2013, Beddingfield failed to show for a second appointment, and again he was placed in jail as another sanction. Upon his release, Hilbish scheduled an appointment for him to meet with a different probation officer. Beddingfield also failed to show for that appointment. As part of his probation, Beddingfield had been referred to an employment skills group and failed to appear for this as well. At his probation revocation hearing, Beddingfield indicated his reason for missing appointments was he was employed and could not attend.
Also, community corrections had placed Beddingfield in a surveillance program. Hilbish testified that as part of that program “prep teams” had to search for Beddingfield in the community, and they were unable to locate him on numerous occasions. She testified Beddingfield moved at least twice without providing an updated address as required. Beddingfield was also placed on a “UA PassPoint system where [offenders] call in each day and report for scans.” Beddingfield failed to report for the scans. Beddingfield testified he moved from the first residence because the apartment was not conducive to successful completion of probation. He said he told Hilbish it was his intention to move out of that apartment as soon as possible following his release, but he was unable to provide a new address at that time. Beddingfield contended he went into the probation department on a Thursday morning in order to change his address. He was told Hilbish was in a meeting and would be unavailable the rest of the day. Beddingfield said he would come back the following day, but he was informed Hilbish did not work on Fridays. Beddingfield claimed he did not report to his new probation officer because he did not know who to report to. He testified, “I was reporting, actually, it seemed like to everybody.” Beddingfield believed he could come back at a later date to update his address.
One of the probation conditions prohibited Beddingfield from having any contact with persons on probation, parole, or bond. He was also prohibited from having contact with anyone actively involved in any kind of illegal activity, including illegal drug use. Beddingfield was specifically ordered not to have contact with Stephanie Heffner due to her continued use of illegal drugs. Beddingfield admitted to contacting Heffner on several occasions.
An additional provision of Beddingfield's probation required that he not violate the law. Nevertheless, law enforcement officers arrested him for new felony drug charges while on probation.
The district court revoked Beddingfield's probation after finding he had committed technical violations of his conditions, he had committed new crimes while on probation, and it would jeopardize public safety to leave him on probation.
Prior to the revocation, Beddingfield had served jail sanctions from July 30, 2013 through August 20, 2013, and again from August 23, 2013, through September 3, 2013. As to the second sanction, the journal entry incorrectly states Beddingfield was in jail only from August 27, 2013, through September 3, 2013.
The Commission of New Crimes
Beddingfield claims there was insufficient evidence to find he violated his probation by committing new crimes. To support an order revoking probation, the commission of the violation must be established by the preponderance of the evidence. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). “A preponderance of the evidence is established when the evidence demonstrates a fact is more probably true than not true.” State v.. Inkelaar, 38 Kan.App.2d 312, 315, 164 P.3d 844 (2007), rev. denied 286 Kan. 1183 (2008). On appeal, we review a factual determination by the district court under the substantial competent evidence standard. 38 Kan.App.2d at 315. Substantial evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012).
At the revocation hearing, Hilbish testified Beddingfield had violated his probation because he was arrested on new felony drug charges. Deputy Heath Samuels testified as to the events surrounding the new crime.
Samuels heard a request over the radio for a law enforcement officer to stop two individuals traveling northbound on bicycles. When he arrived, Samuels observed Beddingfield and Heffner on the two bicycles. Samuels knew Beddingfield had active warrants, and he attempted to stop the two individuals. He stopped his patrol car in the middle of the street, exited the vehicle, and told the them he needed to speak with them. Beddingfield and Heffner went around the deputy's car and continued to pedal away. Deputy Samuels testified he was in a marked patrol car and he was wearing a black vest with “Sheriff written on both the front and the back. He testified Beddingfield would have seen the vehicle and the vest. Another officer was also on the scene. She was in an unmarked vehicle, but she was wearing a black vest marked “Police.” Deputy Samuels believed the other officer had her gun pointed at Beddingfield when she told him to stop. Samuels testified he too told Beddingfield to stop. Following this testimony, Beddingfield interrupted and said Deputy Samuels never said anything to him. When Deputy Samuels continued his testimony, he said Beddingfield refused to abide by his instruction to stop. Samuels pursued Beddingfield in his patrol car and followed him down an alley. At some point, Beddingfield ditched his bicycle and continued running through the alley on foot. Deputy Samuels witnessed Beddingfield climb over residential fences in the alley and then caught up to Beddingfield as he attempted to hide underneath a porch. Again, Deputy Samuels yelled, “Les Paul, stop.” Samuels put Beddingfield in handcuffs and placed him in the patrol car.
Deputy Samuels testified other officers were on the scene, and they found several packages containing a white crystal substance near Beddingfield's bicycle. Samuels conducted a field test on the substance which netted a positive result for methamphetamine. There were three packages of the drug and no indication of drug tax stamps purchased for the illegal substance.
Beddingfield argues he rebutted the State's evidence regarding the commission of the new crimes. At the probation revocation hearing he testified he had been appointed an attorney in order to enter a not guilty plea and that constituted evidence of his denial of the new crimes.
Preliminarily, the district court mentioned that when a “defendant has committed a new felony or a misdemeanor, the Court can, in fact, revoke probation without going through the graduated sanctions....” It then found there was unrebutted evidence Beddingfield was stopped by Deputy Samuels, was in possession of five grams of methamphetamine, and there were no drug tax stamps. The court stated that even though Beddingfield may have entered a plea of not guilty, there was evidence of the commission of new crimes.
We conclude that the record before the district court was sufficient for the court to find by a preponderance of the evidence that Beddingfield had committed new crimes while on probation. While Beddingfield may have denied he possessed the methamphetamine, the testimony of the law officer who arrested him was sufficient to revoke the probation. The district court did not err by finding Beddingfield violated his probation when he committed new crimes.
Abuse of Discretion
Beddingfield argues the district court abused its discretion by revoking his probation after finding he had committed technical violations, he had committed new crimes, and that the public safety would be jeopardized if he remained on probation. As he argued with regard to the commission of new crimes, he argues there was insufficient evidence to prove the technical violations or that his remaining on probation would jeopardize public safety. Beddingfield further claims that even if there was sufficient evidence of all the violations, the court abused its discretion by ordering him to serve his underlying 9–month sentence. The argument fails.
Our Supreme Court has stated: “To sustain an order revoking probation on the ground that a probationer has committed a violation of the conditions of probation, commission of the violation must be established by a preponderance of the evidence.” Gumfory, 281 Kan. at 1170. Once there is evidence that probation was violated, the decision to revoke probation rests within the sound discretion of the district court. 281 Kan. at 1170. It is an abuse of judicial discretion when no reasonable person would have taken the position of the district court. 281 Kan. at 1170. On review, this court must only determine whether the decision to revoke was arbitrary, fanciful, or unreasonable. State v. Walker, 260 Kan. 803, 808, 926 P.2d 218 (1996).
With regard to the technical violations, we have previously listed all the times Beddingfield failed to appear for various appointments with people who were with the probation office or who were working with the office in supervising Beddingfield's probation. We need not repeat them at this point. Suffice it to say his failure to appear began with his first intake appointment and he later received two different jail sanctions as a result of his continued noncompliance with conditions of probation.
In addition to the technical violations, the district court heard evidence regarding the commission of new crimes and we have determined there was sufficient evidence to support the court's factual findings in this regard. Contrary to Beddingfield's argument, the court was not required to first impose graduated sanctions before ordering revocation, since it determined Beddingfield committed new crimes. K.S.A.2013 Supp. 22–3716(c)(8) provides:
“If the offender commits a new felony or misdemeanor or absconds from supervision while the offender is on probation, ... the court may revoke the probation ... of an offender pursuant to subsection (c)(1)(E) without having previously imposed a sanction pursuant to (c)(1)(B), (c)(1)(C) or (c)(1)(D).”
With sufficient evidence of new crimes in combination with the numerous technical violations committed by Beddingfield, we find nothing arbitrary, fanciful, or unreasonable about the district court's revocation of his probation. The court did not err in its interpretation of its statutory authority. We cannot say that no reasonable person would have taken the position the court did here. The court did not abuse its discretion by revoking Beddingfield's probation and ordering him to serve the underlying sentence of 9 months based upon his technical violations and commission of new crimes.
In light of this determination, we need not address Beddingfield's argument that the district court also erred in finding that public safety would be jeopardized if he remained on probation.
Jail Time Credit
Beddingfield argues the court erred by failing to note his proper jail time credit in its journal entry revoking probation. He contends he was in jail from August 23, 2013 to September 3, 2013, as a result of previous sanctions imposed for probation violations and he was not given credit for 3 of these days—August 23, 2013, to August 26, 2013. The State concedes this issue. The journal entry incorrectly states Beddingfield was in jail from August 27, 2013, through September 3, 2013, when it should have stated he was in jail from August 23, 2013, through September 3, 2013. We remand the case to the district court for a correction of the journal entry to reflect jail-time credit on Beddingfield's sentence for the 3 additional days.
Affirmed in part, reversed in part, and remanded with directions.