Opinion
Nos. 106,548 106,549.
2012-10-12
STATE of Kansas, Appellee, v. Shane LEDFORD, Appellant.
Appeal from Sedgwick District Court; Douglas R. Roth, Judge. Carl F.A. Maughan and Catherine A. Zigtema, of Maughan & Maughan LC, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Douglas R. Roth, Judge.
Carl F.A. Maughan and Catherine A. Zigtema, of Maughan & Maughan LC, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., ATCHESON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Defendant Shane Ledford appeals from the decision of the Sedgwick County District Court to revoke his probation in two cases and to require that he serve the underlying sentences. Ledford argues that he received inadequate notice of the probation violations and that he was held in custody so long before getting a revocation hearing that the proceedings should have been dismissed. We find no basis for reversing the district court's determination and, therefore, affirm.
In one of the district court cases, the State charged Ledford and three codefendants, including Carlos Montidoro, with criminal threat and aggravated assault. In the other case, the State charged Ledford with aggravated intimidation of a witness-the victim in the first case. Ledford entered into an agreement with the State under which he would plead to all charges in exchange for the State's recommendation for standard presumptive sentences and for a dispositional departure to probation. The State would also agree to recommend concurrent sentences for the aggravated assault and criminal threat charges to be run consecutive to the witness intimidation charge. In addition to the standard probation conditions, Ledford would agree to a curfew and a prohibition on his associating with: (1) known gang members; (2) persons subject to pretrial supervision, probation, parole, or active prosecution; and (3) the victim or any codefendants in the cases against him.
At Ledford's sentencing hearing on November 17, 2010, the district court expressed reservations about the plea deal but followed it. The district court imposed a sentence of 25 months in prison on the aggravated assault charge, a concurrent sentence of 5 months on the criminal threat charge, and a consecutive sentence of 37 months in prison on the witness intimidation charge. The district court granted Ledford's motion for a dispositional departure and imposed a 24–month term of probation. The district court specifically ordered Ledford not to associate with his codefendants or to have any contact with the victim. The district court also imposed standard probation conditions and particular gang conditions on Ledford. Those conditions included no contact with gang members and persons who have been or are being adjudicated through the criminal justice system or are on postadjudication supervision. The standard conditions also included a curfew requiring Ledford to be in his home between 7 p.m. and 7 a.m. absent authorization otherwise from the court or a court services officer.
As part of the probation process, Ledford received and signed a list of probation terms and conditions on November 29, 2010, intended to both restate and supplement what the district court had ordered. The form included the prohibitions on associating with persons involved in the criminal justice process, gang members, and his codefendants and the victim. The form modified the curfew, setting it from 9 p.m. to 7 a.m. Ledford also initialed the individual conditions, except for the one about associating with codefendants and victims.
Three days later, on December 2, Wichita Police Officer Jeff McVay conducted a curfew check on Ledford and found he was not at home at 9 p.m. The officer waited. About 15 minutes later, a car pulled up and let Ledford out. McVay recognized the driver to be Montidoro. He testified Montidoro was known to be a member of the VLP gang.
On December 18, McVay again checked on Ledford and determined he was not at home at 9 p.m. About 10 minutes later, a car driven by a female with two male passengers arrived. Ledford got out of the car. McVay forwarded a description of the car to Officer Keith Cox, who pulled it over for a traffic violation a few blocks from Ledford's house. Cox identified the male passenger in the car to be Kevin Salisbury. Additional investigation showed Salisbury to be on parole.
Brenda James, the court services officer supervising Ledford, filed a probation violation warrant on December 21, 2010, alleging Ledford had twice missed his curfew and had been in the company of Salisbury and of Montidoro. The warrant identified Salisbury by name, gave the date of his known contact with Ledford, and the case in which he was on parole. The warrant similarly identified Montidoro by name and provided the date he and Ledford were seen together. The warrant identified Montidoro as a known gang member but not as one of Ledford's codefendants. Ledford was promptly taken into custody on the alleged violations.
Ledford's lawyer filed several motions to modify the probation conditions and to have the warrant dismissed because some of the conditions were constitutionally vague and overbroad. His lawyer filed another motion requesting Ledford's release from jail and discharge from the warrant because he had been held in custody for more than 60 days. Ledford also asked that the court reduce his bond or otherwise permit his release before the revocation hearing. The district court took up and denied the bond motion on February 25, 2011. The district court considered the other motions on March 18 and afforded Ledford no relief. At that time, Ledford stipulated to violating the curfew condition twice but requested a formal hearing on the other violations. During the hearing, the State noted the violation concerning Montidoro should be modified by removing the language identifying him simply as a gang member.
The district court scheduled an evidentiary hearing for April 8, 2011.
The State presented testimony from McVay, Cox, and James at the hearing on April 8. Ledford neither testified nor offered other substantive evidence at the hearing. Ledford's lawyer objected to portions of the State's evidence on relevance and due process grounds as being insufficiently related to the violations described in the warrant. The State, however, presented no evidence showing that Ledford knew Salisbury to be a parolee.
At the conclusion of the April 8 hearing, the district court found that the State had proven by a preponderance of the evidence that Ledford had associated with Montidoro in violation of the conditions of probation because Montidoro was a gang member, a codefendant of Ledford's, and a person of disreputable or harmful character. The district court further found that Ledford had violated the probation conditions by being with Salisbury. The district court characterized that violation as technical because there was no evidence Ledford knew Salisbury to be on parole. But the district court treated the curfew violations as more significant because they reflected a continuing disregard for the probation conditions. That, coupled with Ledford's fairly extensive criminal record, suggested to the district court a public safety concern. The district court placed particular emphasis on Ledford's impermissible association with Montidoro, calling that factor “critical in [its] determination.” The district court revoked Ledford's probation, declined to reinstate any form of conditional release, and ordered Ledford to serve the underlying prison sentences. Ledford has timely appealed.
Ledford focuses his argument on the district court's finding that he violated the terms of his probation in associating with Montidoro. The challenge goes to the sufficiency of the notice he received about the nature of the violation, an attack Ledford couches in language of constitutional due process. The point warrants no relief.
To be sure, probationers are entitled to due process, a component of which includes fair notice of both the terms and conditions they are to abide by and the factual circumstances of any asserted violation of those obligations. See State v. Walker, 260 Kan. 803, Syl. ¶ 2, 926 P.2d 218 (1996) (constitutional due process applies to probation revocation proceeding); State v. Grossman, 45 Kan.App.2d 420, 423–24, 248 P.3d 776 (2011) (due process in probation revocation requires written notice of the claimed violations); United States v. Loy, 237 F.3d 251, 267 (3d Cir.2001) (A term of conditional release imposed on a defendant “violates due process by failing to provide [him or her] with adequate notice of what he [or she] may and may not do.”). Due process is a flexible requirement shaped to the interests at stake. A probation revocation hearing does not require the same strict level of due process afforded in a criminal prosecution. Gagnon v. Scarpelli, 411 U.S. 778, 781–82, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (so noting and finding probation revocation indistinguishable from parole revocation for due process purposes); Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (so noting as to parole revocation). In Morrissey, the United States Supreme Court recognized due process in a revocation proceeding includes written notice of the alleged grounds on which the government relies. 408 U.S. at 489. The notice requirement has been codified in Kansas. K.S.A.2010 Supp. 22–3716(b) (court services officer to “submit in writing a report showing in what manner the defendant has violated the conditions of release”).
As we have noted, the warrant cited Ledford for being “in the company of Carlos Montidoro, a documented gang member[,]” on December 2, 2010. And the warrant stated that Ledford was not to “associate with known gang members and persons of harmful and/or disreputable character.” Ledford asserts interrelated due process arguments. First, he says he did not violate the gang condition or, at the very least, that condition was unclear. Second, he says the warrant failed to give adequate notice that he was alleged to have violated the condition prohibiting him for associating with his codefendants.
For the sake of argument, we give Ledford the benefit of doubts he probably is not entitled to on the gang condition. The condition the district court imposed, as reflected in the journal entry, stated Ledford “shall not associate with anyone associated with any gangs, including but not limited to the Hoover Street Crips gang.” The prohibition was all encompassing. But the condition in the document Ledford signed and initaled at the probation office on November 29 limited the prohibition specifically to members of the Hoover Street Crips. Montidoro was affiliated with a different gang.
There is at least some arguable tension between the two versions of the gang association condition and at least some arguable room for contusion about the scope of the prohibition. But Ledford did not testify he was confused about that term. And a prohibition limited to members of a particular gang seems, on the whole, an unlikely one. It would be something akin to a court ordering a probationer not to consume whiskey but, by implication at least, allowing all other alcoholic beverages. A reasonable probationer probably ought to question that sort of implication. Nonetheless, we put to one side that aspect of the violation and do not rely on it.
Ledford, however, had been plainly and unequivocally informed he was not to associate with his codefendants. He knew that would violate his probation. He just as certainly knew Montidoro to be one of those codefendants. The warrant put Ledford on notice that the factual basis for one of the violations rested on his contact with Montidoro on December 2—a circumstance that violated multiple conditions of his probation. We fail to see a sustainable due process violation. As the United States Supreme Court has recognized, the purpose of the hearing is “to assure that the finding of a parole violation will be based on verified facts.” Morrissey, 408 U.S. at 484. That interest was fully served here.
Ledford never disputed the factual allegation that he was with Montidoro on December 2, as by suggesting McVay's identification was mistaken. Nor has Ledford even suggested on appeal that his ability to defend against the violation was somehow impaired, as might be true if the State sought to switch the date of the alleged violation just before the hearing, confounding a defense demonstrating the violation could not have occurred on the particular date because Montidoro was out of town. In short, Ledford had fair notice of the substance of the violation—he was with Montidoro on December 2—so he could defend against the State's contention.
Accordingly, the district court properly found Ledford committed a material violation of the terms of his probation. In turn, the district court had sufficient grounds to revoke Ledford's probation and to require he serve the underlying prison sentence. After the State has proven a violation of the conditions of probation, revocation lies within the sound discretion of the district court. State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). A district court abuses that discretion if its action must be characterized as arbitrary, fanciful, or unreasonable. Unruh v. Purina Mills, 289 Kan. 1185, 1202, 221 P.3d 1130 (2009). That is, no reasonable judicial officer would have come to the same conclusion if presented with the same record evidence. See State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009). Ledford wisely advances no argument the district court abused its discretion. We are confident other district courts would have taken the same action.
The district court treated the curfew violations as material, and Ledford stipulated to them. We need not attempt to divine whether the district court would have revoked Ledford for those alone.
The district court characterized the violation for associating with Salisbury as a technical one, a designation we take to mean it really did not factor materially in the ultimate decision to send Ledford to prison. In his appellate brief, Ledford argues the district court should have dismissed the violation for associating with Salisbury both because it was inadequately alleged in the warrant and because the State introduced no evidence he knew Salisbury to be a parolee. We reject the notice argument for the same general reasons applicable to the violation based on Ledford's contact with Montidoro. Although the warrant does not specifically allege a violation of the condition prohibiting contact with a parolee, it identifies Salisbury by name, gives the date of the contact, and notes he is a parolee and provides the case. Ledford was not misled or confused about the circumstances of the charged violation.
Because the district court treated the violation as merely technical, we leave for another day whether the State had to prove Ledford knew (or had reason to know) that Salisbury was a parolee to establish the violation. See United States v. Ucceferri, 133 F.Supp.2d 1330, 1338 (M.D.Fla.2001) (declining to find violation of supervised release when government failed to present evidence defendant knew individuals were convicted felons). Nor do we consider whether a probation condition prohibiting association with a parolee in the absence of such knowledge, effectively imposing a strict liability standard, would satisfy due process. See Walker, 260 Kan. at 810 (indicating probationer should be afforded opportunity to show that he or she “was not fully aware that his [or her] conduct was in violation of the rules”).
In short, we assume the district court correctly found a violation of Ledford's probation conditions as to Salisbury largely because that determination appeared to make no tangible difference in the outcome.
Ledford also contends the warrant should have been dismissed because he had been in custody for a little over 100 days awaiting an evidentiary hearing on the grounds for revocation. In Morrissey, the United States Supreme Court recognized that an offender on postconviction release must be given a revocation hearing “within a reasonable time” after being taken into custody to satisfy constitutional due process requirements. Kansas has codified that obligation in K.S.A.2010 Supp. 22–3716(b) by requiring the district court to conduct a hearing “without unnecessary delay.” Neither the Supreme Court nor the Kansas Legislature endeavored to define the acceptable period with any more particularity or to set a fixed outer limit.
Ledford argues that he should not have been held more than 60 days without a hearing. He borrows the time period from K.S.A. 21–4603d(a)(3), which allowed a district court to revoke and reinstate a defendant's probation while requiring the defendant to serve up to 60 days in a county jail as a condition of the reinstated probation. There is no particularly logical connection between a punishment a district court may impose upon finding a probation violation and reinstating the probation, on the one hand, and the time a probationer may be held awaiting a revocation hearing, on the other. The disconnect seems even wider in a case such as this where the district court has chosen not to reinstate probation but, rather, requires the revoked probationer to serve the underlying sentence of imprisonment. In short, one time period really has nothing to do with the other.
Nonetheless, Ledford was constitutionally entitled to a hearing “within a reasonable time” and statutorily “without unnecessary delay,” terms we treat as legally equivalent. This court has recognized that a probation revocation proceeding may be dismissed as untimely if a delay results in material prejudice to the probationer or is of sufficient duration, under the circumstances, to evince a waiver by the State. State v. Curtis, 42 Kan.App.2d 132, 139, 209 P.3d 753 (2009).
In this case, a considerable portion of the delay between Ledford's arrest and incarceration on the warrant and his revocation hearing resulted from motions his lawyer filed. That time cannot fairly be counted toward a delay establishing a lack of due process or statutory breach. Otherwise, probationers facing revocation would flood the process with pretrial motions artificially creating delays and then asserting violations of their rights. Just as importantly, Ledford has not argued, let alone shown, that the delay in any way impeded his ability to defend against the alleged violations. Absent actual prejudice to Ledford, we are not disposed to find a violation here. We also note that Ledford received credit against his sentence for the time he spent in jail before the revocation hearing further lessening any arguable prejudice.
This is not a case where the State sought repeated long continuances while a probationer objected and waited in jail for a hearing. We suppose at some point that sort of conduct could result in a due process violation or some other constitutional violation even absent substantive prejudice to the presentation of a defense to the allegations.
The State may waive a potential probation violation by waiting an undue period before issuing a warrant or otherwise initiating the revocation process. Or there may be a waiver if, after initiating the process, the State fails to take reasonable and timely steps to inform the probationer of the violations, as by executing the warrant. 42 Kan.App.2d at 139–40. Neither applies here. The State sought to revoke Ledford about 2 weeks after the initial violation and mere days after the second. Ledford was immediately taken into custody, providing him with prompt notification. As we have already found, Ledford did not then languish, simply lost in the Sedgwick County jail. The district court held several hearings regarding the revocation, and the process moved inexorably forward as his pretrial motions were taken up and decided. The State did nothing that could be construed as a waiver of the alleged violations.
Ledford received a timely revocation hearing.
Affirmed.