State v. Allison ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 124,018
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
MICHAEL D. ALLISON,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; KEVIN M. SMITH, judge. Opinion filed December 23,
2021. Reversed and remanded with directions.
Submitted by the parties for summary disposition pursuant to K.S.A. 2020 Supp. 21-6820(g) and
(h).
Before ATCHESON, P.J., CLINE and HURST, JJ.
PER CURIAM: The Sedgwick County District Court revoked the probation of
Defendant Michael D. Allison and ordered him to serve his underlying prison sentence
ostensibly because he posed a threat to public safety and his welfare would not be served
by continuing the probation. The hearing transcript shows the district court plainly failed
to make those findings with the required statutory particularity—an error of law and,
therefore, an abuse of discretion. So we reverse the revocation and remand to the district
court for further proceedings, presumably including a hearing at which the district court
can endeavor to make the necessary findings to support its decision.
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FACTUAL AND PROCEDURAL BACKGROUND
Allison pleaded guilty to one count of aggravated battery, a felony, and one count
of misdemeanor criminal damage to property in September 2017 arising from a criminal
incident on December 16, 2016. The district court designated the convictions as domestic
violence offenses. The district court later sentenced Allison to 29 months in prison on the
felony conviction and 6 months in jail on the misdemeanor, to be served consecutively,
and placed him on probation for 24 months consistent with the presumptive punishment
under the sentencing guidelines.
The record establishes Allison did not fare well on probation. With some
regularity, he failed to report to his probation officer as required, tested positive for
alcohol or illegal drugs, and completed neither substance abuse counseling nor a program
for perpetrators of domestic violence. Allison was sanctioned for those violations,
including serving jail time, and had his probation extended.
In November 2019, Allison's probation officer requested and received another
warrant because in the preceding two weeks Allison had tested positive for
methamphetamine and twice failed to report as directed, a set of violations consistent
with his noncompliance over the course of the probation. The district court held a hearing
on those violations in May 2021—the reason for the delay isn't immediately apparent
from the record and is of no legal significance to this appeal. Through his lawyer, Allison
admitted the violations.
Given that admission, the prosecutor submitted the district court should revoke
Allison's probation and send him to prison, echoing the recommendation of the probation
officer. The prosecutor cited K.S.A. 2016 Supp. 22-3716(c)(9) permitting revocation and
incarceration without intermediate sanctions upon a finding set forth "with particularity
. . . that the safety of members of the public will be jeopardized or that the welfare of the
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offender will not be served by such sanction." The prosecutor alternatively asked that the
district court impose a 180-day prison sanction if Allison were continued on probation.
Through his lawyer, Allison sought continuation of his probation with a 180-day prison
sanction. The lawyer argued Allison suffered from untreated blackouts that contributed to
the recurrent violations. The lawyer did not discuss specifically how the blackouts
impaired Allision, and nobody presented any evidence about them.
At the conclusion of the hearing, the district court briefly noted the dates of the
earlier violations and the sanctions imposed and then told Allison, "I don't think it's
appropriate . . . for me to go through a bunch of hoops to deal with a case that's from
2017 when you haven't done what you need to do." The district court then referred to
Allison's blackouts as "an issue that—that is potentially placing yourself and others in
harm" and stated:
"So based on that I do find that it is not in your welfare to extend your probation
further and to continue your probation, and I also find that it's not in the community's best
interests given the potential danger you place others in by your behavior. Because of that
I'm going to order that your probation be revoked and I am imposing the underlying
prison sentence in this case."
When the district court made no additional findings, the prosecutor suggested that Allison
"had been on probation for a long time" and failed to "tak[e] advantage of the programs"
offered to him, "so placing him back on probation would no longer be in his best
interest." The district court agreed it was making that finding. Before closing the hearing,
the district court ordered that Allison serve his sentences concurrently. Allison has
appealed.
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LEGAL ANALYSIS
The lawyer appointed to represent Allison on appeal filed a motion for summary
disposition of the case under Supreme Court Rule 7.041A (2021 Kan. S. Ct. R. 48). The
State did not oppose the motion, and we granted the request.
In the motion, Allison's lawyer "concedes the district court properly invoked the
offender-welfare/public-safety exception to . . . revoke [Allison's] probation" under the
governing statute. The lawyer further states he could not "find any legal or factual error
in with the district court's decision." The motion suggests that under the circumstances,
the district court abused its discretion in not continuing Allison's probation with some
sort of intermediate sanction short of revocation and incarceration for the full prison term.
In other words, the motion asserts no reasonable district court would have revoked the
probation, an abuse of judicial discretion. See State v. Darrah, 309 Kan. 1222, 1227, 442
P.3d 1049 (2019) (district court abuses judicial discretion by ruling in a way no
reasonable judicial officer would under the circumstances, if it ignores controlling facts
or relies on unproven factual representations, or if it acts outside the legal framework
appropriate to the issue).
Upon reviewing the record, we considered the district court's findings as likely
legally deficient to support the "particularity" requirement for revoking probation under
K.S.A. 2016 Supp. 22-3716(c)(9) and, thus, Allison's concession to be doubtful. In State
v. McFeeters, 52 Kan. App. 2d 45, 48-49, 362 P.3d 603 (2015), the court construed the
same "particularity" requirement in K.S.A. 2014 Supp. 22-3716(c)(9) as calling for
findings that are "'distinct rather than general'" and provide an "'exactitude of detail,'"
(quoting State v. Huskey, 17 Kan. App. 2d 237, Syl. ¶ 2, 834 P.2d 1371 [1992]). Implicit
findings are insufficient, meaning the district court must "explicitly address" how the
defendant has jeopardized public safety or undermined his or her own welfare such that
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probation would no longer be preferable to incarceration for the original prison term. 52
Kan. App. 2d at 48-49.
We have recognized that general references to a defendant's criminal history or
poor performance on probation do not supply a particularized explanation of how the
public safety may be threatened or the offender's welfare impaired. See State v. Kemp,
No. 122,733, 2021 WL 3439213, at *2 (Kan. App. 2021) (unpublished opinion) ("A
district court's conclusory remarks about the offender's unwillingness or inability to
conform his or her behavior to the requirements of probation is not sufficient."); State v.
Brown, No. 117,794, 2018 WL 4039194, at *2 (Kan. App. 2018) (unpublished opinion).
Whether a district court's findings are sufficiently particularized presents a question of
law over which we exercise unlimited review, since the hearing transcript conclusively
establishes those findings. 2018 WL 4039194, at *2.
Despite our concerns, the parties had not joined or briefed that issue. We,
therefore, could not act on those concerns as the appeal had been presented to us. But an
appellate court may raise issues for its own consideration if the parties are then afforded
an opportunity to address them. See State v. Parry, 305 Kan. 1189, 1191-92, 390 P.3d
879 (2017). We, therefore, issued an order directing the State to show cause why we
should not reverse Allison's probation revocation because the district court's findings
lacked the particularity sufficient to comply with K.S.A. 2016 Supp. 22-3716(c)(9). We
also invited Allison, through his lawyer, to respond to the show cause order if he wished.
The State duly filed a response; Allison declined our invitation and filed nothing.
In its response, the State argues that we should not reach an issue a defendant has
conceded. We understand the argument to be a jurisprudential one: Although we have
the authority or power to raise and consider such an issue (after affording the parties an
opportunity to be heard), we would act improvidently to do so here. The State cites
several cases ostensibly illustrative of that position. We find them off point.
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The State offers three cases in which the Kansas appellate courts have recognized
criminal defendants will be bound by colorable tactical decisions their lawyers make in
representing them. And, in turn, those decisions should not be fodder for a later objection
from the defendant in the district court or as a point on appeal. See State v. Sappington,
285 Kan. 158, 165, 169 P.3d 1096 (2007) (defendant may make reasoned decision to
forgo defenses ostensibly supported in the evidence that are legally or factually
inconsistent with a preferred defense); State v. Busse, 231 Kan. 108, 111-12, 642 P.2d
972 (1982) (defendant waived statutory and constitutional rights to confront witnesses
against him when he deliberately withdrew from preliminary hearing on advice of
counsel apparently to avoid having those witnesses identify him; preliminary hearing
testimony could then be admitted at trial when one of those witnesses became
unavailable); State v. Poore, No. 105,726, 2012 WL 1524321, at *2 (Kan. App. 2012)
(unpublished opinion) (appellate court declines to consider defendant's argument that
district court automatically should have instructed jury on defense supported in the
evidence that would have conflicted with defense pursued at trial). That sound rule,
rooted in notions of invited error and judicial estoppel, doesn't apply here. See State v.
Fleming, 308 Kan. 689, 696-97, 423 P.3d 506 (2018) (principles of invited error); Estate
of Belden v. Brown County, 46 Kan. App. 2d 247, 262-63, 261 P.3d 943 (2011)
(principles of judicial estoppel). There appears to be no legal benefit to Allison in
appealing the revocation on the grounds no reasonable district court would have refused
to continue the probation and abandoning a sound argument that the district court made
statutorily insufficient findings to support the revocation. Had he responded to the show
cause order, Allison could have outlined any legal or practical reasons for approaching
the appeal as he did and asked us to honor the decision.
In its response, the State also cites Wood v. Milyard, 566 U.S. 463, 132 S. Ct.
1826, 182 L. Ed. 2d 733 (2012), as counseling against the exercise of our judicial
authority to consider whether the district court complied with the particularity
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requirement of K.S.A. 2016 Supp. 22-3716(c)(9). We find Wood inapposite, as well. The
United States Supreme Court held that the Tenth Circuit Court of Appeals erred in
denying habeas corpus relief to Wood on the grounds he failed to file a timely petition
when the government expressly disclaimed reliance on that procedural bar in the district
court. 566 U.S. at 472-73. The government sought and received a favorable ruling on the
merits in the district court. The circuit court affirmed by resurrecting and relying on the
waived procedural defect. Although recognizing the circuit court's authority to consider
an issue the government waived, the Court held the exercise of that authority amounted to
an abuse of discretion under the circumstances, especially when the district court had
expended the time and judicial resources to resolve the habeas corpus claim on the
merits. 566 U.S. at 473-74.
The jurisprudential considerations here weigh heavily on the other side of the
scale. Our resolution promotes an ultimate decision based on the merits of the statutory
exception to the use of graduated sanctions typically required for probation violations—a
key objective behind the Court's disposition of Wood. Second, remanding to the district
court does not squander a substantial investment of time or judicial resources already
expended to resolve the probation violation. And our determination serves to protect a
fundamental due process right based on a liberty interest afforded every citizen. See
Hamdi v. Rumsfeld, 542 U.S. 507, 529, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (2004)
("[T]he most elemental of liberty interests [is] the interest in being free from physical
detention by one's own government."); see also State v. Gonzalez, 57 Kan. App. 2d 618,
623, 457 P.3d 938 (2019) ("Probationers facing revocation and imprisonment on felony
convictions indisputably have a liberty interest triggering constitutional due process
protections."). Liberty, in the sense of being free of unlawful detention, is of inestimable
value and cannot be restored once lost.
Given those circumstances, we can and should exercise our authority to examine
what appears to be a patently erroneous legal conclusion substantially disadvantaging a
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criminal defendant and directly resulting in a loss of liberty. We are not attempting to
rescue a defendant from a tactical decision that seemed ill-conceived from its inception or
proved ineffective in hindsight. Accordingly, we have no obligation to accept the
mistaken legal representation made on Allison's behalf in the motion for summary
disposition of this appeal. Our decision reflects a jurisprudential determination entailing
the exercise of discretionary authority. We are neither obligated to act as we have nor
prohibited from doing so.
We have chosen this course consistent with our view of the court's error-correcting
function interlaced with a duty to avoid the improvident dissipation of a citizen's
fundamental liberty interests in a criminal case. We recognize that other judges may view
their discretionary role differently, as our dissenting colleague does.
CONCLUSION
Consistent with the statutory requirement for particularity in revoking a
defendant's probation under K.S.A. 2016 Supp. 22-3716(c)(9) and the appellate cases
elaborating on that obligation, we find that the district court failed to adequately explain
the factual basis for its decision. That failure is itself an error of law. The explanation was
nonspecific and seemed to rest primarily on Allison's blackouts. But the record contains
no representations from the lawyers, let alone evidence, as to the cause, frequency, or
duration of the blackouts or if they affect Allision in some way beyond a temporary loss
of consciousness. Although the record arguably suggests Allison could pose a danger as a
driver or while operating construction equipment or the like, that cannot be a justification
for revoking his probation. The district court's remarks are otherwise inscrutable as to any
particular reason Allison would pose a risk to the public safety or to himself if he were to
remain on probation. In its response to the show cause order, the State does not offer an
alternative argument that the district court's findings comported with K.S.A. 2016 Supp.
21-3716(c)(9) or the directives in McFeeters.
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In sum, the district court's decision to revoke amounts to an abuse of judicial
discretion precisely because it falls outside the governing legal framework of K.S.A.
2016 Supp. 21-3716.
We offer no opinion about the sufficiency of the record to support revocation and
say only that the district court failed to make particularized findings necessary to revoke
based on public safety or offender welfare. Because we are reversing for insufficient
findings, we similarly do not consider Allison's argument that the district court otherwise
abused its discretion in declining to continue him on probation.
We reverse Allison's probation revocation and remand to the district court for
further proceedings consistent with this opinion.
***
CLINE, J., dissenting: This court has so often held that issues not raised or briefed
are abandoned that no citation to legal authority is necessary. I see no reason to treat
issues which are specifically conceded any differently. Michael D. Allison conceded that
the district court properly invoked the offender-welfare/public-safety exception to
instantly revoke his probation and affirmatively stated he could find no legal or factual
error with the district court's decision.
If we mean what we say, we should affirm.
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