Opinion
No. 106,874.
2012-10-5
STATE of Kansas, Appellee, v. Luis NAVARETTE–PACHECO, Appellant.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BUSER and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Luis Navarette–Pacheco appeals from the district court's denial of his motion to modify probation. Pacheco, a legal resident alien, pled guilty to aggravated robbery, aggravated burglary, and aiding a felon. He was granted probation. Shortly after sentencing, the court issued a warrant for Pacheco for failing to report. Defense counsel informed the court that Pacheco's convictions had resulted in deportation and moved for modification of his reporting condition. Instead of allowing Pacheco to report from Mexico City, the court left the warrant in place to prevent him from reentering the United States illegally and going undetected. We affirm.
The State charged 18–year–old Pacheco and two others with first-degree murder for their involvement in a gang-related stabbing. After passing a polygraph, during which he denied stabbing the victim but admitted to seeing two friends stab the victim, Pacheco pled guilty to aggravated robbery, aggravated burglary, and aiding a felon. His “Acknowledgement of Rights and Entry of Plea” form read: “If I am not a United States citizen, I understand that a conviction of a felony offense most likely will result in my deportation from the United States.” In exchange for his plea, the State agreed to recommend a downward dispositional departure to probation based on his age and willingness to change, leave gang life, get a job or enroll in classes, and obey his probation officer.
Pacheco had no prior convictions, giving him a criminal history score of I. Due to his age and limited participation, and the availability of programs to more effectively reduce recidivism and serve community safety interests, the district court imposed a 104–month sentence and placed Pacheco on 36 months' probation with community corrections. The relevant conditions of his probation were to report to his intensive supervision officer (ISO) as directed, remain within Kansas unless court permission to leave was obtained, and obey the laws of the United States.
Just over a month after being granted probation, the district court issued a warrant for Pacheco for his “fail[ure] to report to his ISO due to deportation.” Defense counsel subsequently filed a motion requesting reporting instructions because Pacheco, a legal resident alien, had been deported due to his convictions, and was living in Mexico City with his aunt. The motion informed the court of Pacheco's desire to comply with his probation conditions despite his forcible removal from the United States. A brief hearing was held, at which defense counsel requested that Pacheco be permitted to report from Mexico City because he hoped to return to the United States in 10 to 15 years and wanted to avoid the cloud of a probation violation. The court denied the motion because “while [Pacheco] has hopes of returning to the United States, albeit maybe legally, there are many people that return illegally and the outstanding warrant will catch up with him some day and hold him accountable.” Pacheco timely appeals.
Pacheco argues the district court erred in refusing to allow him to report to probation from Mexico.
“[P]robation is a privilege granted by the sentencing court and [ ] the court has broad power and authority in imposing conditions of probation so long as such conditions do not violate statutory law or constitute an abuse of discretion by the court.” State v. Walbridge, 248 Kan. 65, 68, 805 P.2d 15 (1991). A judge who grants probation “has broad powers to impose conditions designed to serve the accused and the community.” State v. Starbuck, 239 Kan. 132, 133, 715 P.2d 1291 (1986). Judicial discretion is abused when no reasonable person would take the view adopted by the court. State v. Massey, 242 Kan. 252, 264, 747 P.2d 802 (1987).
K.S.A. 21–4610(c) authorizes the district court to set probation conditions and provides a nonexclusive list of conditions, including “report to the court services officer or community correctional services officer as directed,” and “remain within the state unless the court grants permission to leave.” K.S.A. 21–4610(c)(3), (6). The statute also requires the court to “condition any order granting probation ... on the defendant's obedience of the laws of the United States.” K.S.A. 21–4610(a).
In probation matters, jurisdiction of the district court is continuing. State v. Yost, 232 Kan. 370, 372, 654 P.2d 458 (1982)overruled on other grounds state v. Haines, 238 Kan. 478, 712 P.2d 1211 (1986); see K.S.A. 21–4610(a) (“[N]othing in this section shall be construed to limit the authority of the court to ... modify any general or specific conditions of probation.”); K.S.A. 21–4610(b) (“The court may at any time order the modification of [probation] conditions.”).
The Kansas Court of Appeals has rejected the argument that deportation excuses a defendant from reporting to his or her probation officer. In State v. Portillo, No. 91,245, 2004 WL 2085734 (Kan.App.2004) (unpublished opinion), rev. denied 279 Kan. 1009 (2005), Portillo had his probation revoked and reinstated and was then deported. Upon reentering the country, he was brought back before the court for failing to report to his probation officer. He admitted to violating that condition. This court held that the district court did not abuse its discretion in revoking Portillo's probation, noting it was his second probation violation and he was allegedly back in the United States illegally. 2004 WL 2085734, at *4.
In State v. Lamas, No. 96,050, 2007 WL 881846 (Kan.App.) (unpublished opinion), rev. denied 284 Kan. 949 (2007), Lamas was granted probation and then deported directly from jail. The State filed a motion to revoke his probation for failing to report to his ISO as directed. At the revocation hearing, defense counsel explained that Lamas had been deported, and at a later hearing, Lamas admitted to violating the reporting condition. The district court revoked Lamas' probation because he did not “take[ ] the initiative to contact his ISO from Mexico.” 2007 WL 881846, at *1. This court affirmed the revocation, not because Lamas failed to report (there was no evidence that he was directed to report) but because he had violated his probation by illegally reentering the United States. 2007 WL 881846, at *3.
In State v. Munoz–Lozoya, No. 106,886, 2012 WL 1524507 (Kan.App.2012) (unpublished opinion), petition for rev. filed May 17, 2012 (pending), Lozoya was granted probation after being in the United States illegally for many years and amassing a long rap sheet. After being deported, he failed to report and reentered the country illegally. The district court revoked his probation due to his disrespect for U.S. law, and this court affirmed. 2012 WL 1524507, at *1.
The present case is distinguishable from Portillo, Lamas, and Munoz–Lozoya because Pacheco has not violated United States law by reentering the country. See State v. Martinez, 38 Kan.App.2d 324, 331, 165 P.3d 1050 (2007) (8 U.S.C. § 1326 [2000] makes it a felony for a deported alien to thereafter reenter or be found in the United States). On the contrary, Pacheco is showing respect for both Kansas and federal law by attempting to complete probation despite his absence from the U.S.
In United States v. Pugliese, 960 F.2d 913, 914–15 (10th Cir.1992), Pugliese, an imprisoned U.S. citizen, filed a motion to modify the conditions of his supervised release. He requested to be allowed to complete his supervised release in Thailand where his wife and child lived. The Tenth Circuit found “no direct [legal] impediment to authorizing a person on supervised release to leave the United States, if the supervision the judge believes is necessary can be enforced abroad.” 960 F.2d at 915. Nonetheless, it affirmed the district court's denial of the modification motion because the terms of Pugliese's supervised release, including frequent monitoring by a trained probation officer, could not be met in Thailand:
“[T]he structure needed to support defendant's rehabilitative supervision is absent outside the United States We are unaware of any U.S. federal administrative system in Thailand that is empowered or trained to provide the functions of a U.S. probation officer. We note defendant's suggestion that personnel of the United States embassy in Thailand be assigned that responsibility; but there is no indication that the state department personnel have the authority, training, or administrative support to undertake those tasks.” 960 F.2d at 915–16.
See In re Jorge Luis G., No. D039512, 2003 WL 1861539, at *1–2 (Cal.App.2003) (unpublished opinion) (absent treaty allowing probation supervision in Mexico, probation officer has no legal authority to implement supervision, and defendant's offer to transmit proof of compliance across border would not satisfy condition that he submit to random searches).
The trial court's options were to: (1) continue Pacheco's probation in Mexico. However, there was no way to implement such an order as there existed no procedures between the United State and Mexico to do so; (2) toll the time of the probation until Pacheco could reenter the United States legally but that would likely be many years, if ever; or (3) leave the warrant outstanding. This would accomplish getting Pacheco back before the court if he reentered the United States—legally or illegally—if apprehended.
The trial court ordered the third alternative. Other approaches were possible, but a reasonable person might well choose the same option. We find no abuse of discretion.
Affirmed.