State v. Holland

NOT DESIGNATED FOR PUBLICATION
No. 123,499
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JAQUELINN D. HOLLAND,
Appellant.
MEMORANDUM OPINION
Appeal from Sumner District Court; WILLIAM R. MOTT, judge. Opinion filed May 6, 2022.
Affirmed.
Kasper Schirer, of Kansas Appellate Defender Office, for appellant.
Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for
appellee.
Before WARNER, P.J., CLINE, J., and RACHEL L. PICKERING, District Judge,
assigned.
PER CURIAM: Jaquelinn D. Holland appeals the district court's order extending his
probation for a 12-month term. Holland argues the State's delay of almost 10 months
between the issuance and execution of his arrest warrant for violating his probation terms
was unreasonable, resulting in the State waiving its right to prosecute.
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FACTUAL AND PROCEDURAL BACKGROUND
At a September 12, 2019 plea hearing in Sumner County District Court, Jaquelinn
D. Holland pled guilty to one count of counterfeiting currency under K.S.A. 2019 Supp.
21-5840(a)(2). At the following hearing, held on October 10, 2019, the district court
sentenced Holland to probation for 18 months with an underlying prison sentence of 16
months. When Holland initially spoke with his intensive supervision officer (ISO) after
the sentencing hearing, he told the ISO his Wichita residence address. However, Holland
failed to report on October 16, 2019, and again on October 23, 2019. The ISO attempted
to contact Holland but was unable to reach him by phone. On November 4, 2019, the
State filed a motion to revoke Holland's probation for failing to report or contact his ISO
several times. Holland's ISO requested an absconder warrant and stated Holland's
whereabouts were unknown.
That same day, the district court issued an arrest warrant for Holland. The ISO
then contacted law enforcement and notified them of the warrant. The arrest warrant
provided Holland's last known address in Wichita, which was the same Wichita address
that Holland had provided the ISO the month prior. The Sumner County Sheriff
presumably had forwarded the warrant to Sedgwick County, where Holland was living.
On August 24, 2020, less than 10 months from when the district court had issued
the arrest warrant, Holland was arrested. During a traffic stop, a Wichita officer ran
Holland's name for a warrants check. The officer discovered the pending arrest warrant
from Sumner County and arrested Holland. Law enforcement then transferred Holland to
the Sumner County Jail, where he was released and began reporting to his ISO. After
Holland's arrest, the district court scheduled a probation revocation hearing.
Before the probation revocation hearing, Holland filed a motion essentially to
dismiss the proceedings. He asserted the State had waived its right to prosecute his
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probation violations because it had failed to timely execute his arrest warrant. At the
hearing, the court heard arguments on Holland's motion and the State's motion to revoke.
The State called Holland's ISO to testify. He testified that he initially met Holland, who
provided him with a Wichita address. He stated Holland failed to appear at least twice in
October 2019, namely October 16 and 23. He then recalled calling Holland at least twice,
possibly three times, but he was unsuccessful. The ISO also testified he did not leave
Sumner County to travel to Wichita and conduct a home visit. His means of
communication with Holland was by phone and email. The ISO also testified that
typically, after two to three failed attempts at contacting a probationer who had failed to
report, he would file an affidavit with the county attorney's office and recommend
issuance of an absconder warrant. He explained how after filing the affidavit, he notified
law enforcement of the court's order.
The defense counsel then called Holland to testify. Holland explained he did not
have a working phone or any internet services during the probation period, but he had
lived at the same residential address the entire time. He testified he had started working at
Subway for a while, but then temporarily left that position. Holland did not recall police
coming to his home to try to execute an arrest warrant or contacting any of his family to
find him.
After the presentation of evidence, Holland's counsel argued that despite having
Holland's address in Wichita, the State had failed to explain why the authorities had not
properly and timely executed the warrant. In response, the State pointed out that Holland
was still serving his original 18-month probation term when he was arrested, and he had
the burden to show he was prejudiced by the delay. The district court denied Holland's
motion, explaining that 10 months was not an unreasonable time for the State to execute
Holland's arrest warrant, especially considering Holland was living in Wichita, a large
jurisdiction, and was still on probation when the warrant was executed.
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After the district court denied Holland's motion, the court addressed the State's
motion to revoke Holland's probation. Holland stipulated that he had failed to report for
several months. The State moved to extend Holland's probation. The district court found
Holland had violated his probation, imposed a 3-day quick dip jail sanction, and extended
his probation for a term of 12 months. Holland timely appeals.
ANALYSIS
On appeal, Holland continues his argument that the State's failure to conduct a
reasonable investigation to locate him after it issued the probation violation warrant
constituted a waiver of its request for probation revocation. Specifically, Holland claims
the State failed to present evidence of its attempt to serve the arrest warrant, despite
knowing of his Wichita address. In response, the State outlines the efforts done to locate
Holland and execute the warrant and notes that the State executed the warrant while
Holland's probation was still pending.
Standard of Review
This court typically reviews probation revocations for an abuse of discretion. State
v. Coleman, 311 Kan. 332, 334, 460 P.3d 828 (2020). This court applies de novo review
to determine "whether the district court complied with due process requirements in
revoking a defendant's probation." State v. Hurley, 303 Kan. 575, 580, 363 P.3d 1095(2016).
Discussion
The district court's initial decision to grant probation "is an act of grace." 303 Kan.
at 581. However, "once the privilege of probation has been bestowed upon a defendant,
he or she acquires a conditional liberty interest which is subject to substantive and
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procedural due process limits on its revocation." 303 Kan. at 581. Consequently, the Due
Process Clause of the Fourteenth Amendment to the United States Constitution imposes
certain requirements when the State deprives someone of his or her liberty through
probation revocation. See State v. Hall, 287 Kan. 139, 144-45, 195 P.3d 220 (2008).
In Hall, our Supreme Court noted that the controlling statute, K.S.A. 22-3716
provides that "'[a]t any time during probation . . . the court may issue a warrant for the
arrest of a defendant for violation of any of the conditions of release or assignment.'" 287
Kan. at 143. "The determination of whether inaction constitutes an 'unnecessary delay
depends upon the circumstances of each case.'" (Emphasis added.) 287 Kan. at 145
(quoting Toman v. State, 213 Kan. 857, 860, 518 P.2d 501 [1974]).
This court in State v. Curtis, 42 Kan. App. 2d 132, 142, 209 P.3d 753 (2009),
articulated the following legal rules about the State's waiver of the right to pursue a
probation revocation and a probationer's entitlement to due process:
"(a) Due process demands that revocation proceedings be instituted during the term of the
probation and that revocation occur within a reasonable time thereafter; (b) the failure to
act in a timely and reasonable manner to pursue adjudication divests the district court of
jurisdiction to revoke probation; (c) delay is unreasonable where it prejudices the
defendant or if there is an indication that the State has waived its right to pursue the
violation; and (d) if the violation is found to be waived, the probationer is not required to
establish prejudice."
Kansas courts have found due process violations if there is an indication that the
State has waived its right to prosecute a probation violation or the delay is unreasonable
where it prejudices the defendant.
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A leading case is State v. Haines, 30 Kan. App. 2d 110, 39 P.3d 95 (2002). In that
case, the court considered whether the State waived its right to pursue the probation
violation due to a 16-year delay between the issuance and execution of the arrest warrant.
In 1982, after being placed on probation for two years with a $1,000 fine, Haines
moved to Ohio to continue his probation through out-of-state supervision. Haines
understood that if he paid off his fines and court costs, he would no longer be required to
report, thereby ending his supervision. According to Haines, he gave his wife the money
needed to pay the fines and costs. Haines' wife, however, did not make the necessary
payment, and Haines' fine and costs remained unpaid.
On October 3, 1983, the State issued a warrant for Haines due to the outstanding
fines and failure to report. The State sent two letters to Haines at two different Kansas
addresses: the first letter to his wife's address despite knowing that Haines' wife had left
him, and the second letter was sent to his mother's address, which was returned due to an
insufficient address. For the next 16 years, Haines lived openly in Ohio and was
employed as an over-the-road truck driver. In 1999, Ohio law enforcement discovered the
outstanding Kansas warrant and Haines was brought back to Kansas. The district court
revoked Haines' probation and Haines appealed, arguing the 16-year delay violated his
due process rights.
The Haines court agreed, finding the only attempt made by the State to locate
Haines was limited to the two letters and "[m]ore than 16 years have gone by since the
State acted." 30 Kan. App. 2d at 113. The court noted how "several other states have held
that an unreasonable delay by the State in the issuance and execution of a warrant for the
arrest of a probationer whose whereabouts are either known or ascertainable with
reasonable diligence may result in the State's waiver of the violation." 30 Kan. App. 2d at112-13 (citing State v. Williams, 20 Kan. App. 2d 142, 146, 884 P.2d 743 [1994]). The
court thereby ruled that the "State's failure to conduct a reasonable investigation to
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ascertain Haines' whereabouts constitutes a waiver of the violation." 30 Kan. App. 2d at
113.
And in State v. Myers, 39 Kan. App. 2d 250, 253, 178 P.3d 74 (2008), a panel of
this court considered whether the State had waived prosecution due to the State's two-
year delay in executing the arrest warrant for probation violations. The probationer,
Myers, had moved to another state without telling his ISO, and the State later moved the
court to issue an arrest warrant for Myers. Two years after the court had issued the arrest
warrant, the State arrested Myers. At his probation revocation hearing, Myers asserted
that due to the two-year delay, the State had not made a timely and reasonable effort to
serve the arrest warrant. The district court denied his motion and revoked his probation.
Myers appealed.
On appeal, Myers continued his argument that the State had waived its alleged
probation violations asserted in its motion to revoke probation. He asserted that the only
evidence of the State's actions in the two-year period was that the State had entered
Myers' warrant into an online database. There was no additional evidence of the State's
efforts to locate Myers, including sending the warrant to the local out-of-state police
department, assigning a deputy for service, or any attempts by law enforcement in the
two-year period to serve the warrant. The Myers court agreed with Myers, finding the
district court had erred because the State had failed to show additional actions taken in
the two-year period. 39 Kan. App. 2d at 255.
In comparison, there have been Kansas cases where the State has shown efforts to
timely execute an arrest warrant and courts have properly denied probationers' motions to
dismiss probation revocation proceedings.
For example, in Hall, 287 Kan. at 140, our Supreme Court considered whether the
execution of an arrest warrant six years after the warrant was issued was unreasonable
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delay and thus a due process violation. There, the defendant had violated his probation in
McPherson County when he was convicted of a new crime in Saline County. For the new
crime, Hall was ordered to serve a lengthy prison sentence. While in prison, McPherson
County placed a detainer on Hall with prison officials, ensuring Hall's return to
McPherson County to address his outstanding probation violations once he finished his
prison term. During the six-year period, Hall twice wrote to the McPherson County
District Court, asking to be transported for a probation violation hearing to address his
violations and lift the detainer. He argued that the six-year delay was a due process
violation.
In considering this argument, the Hall court looked to Moody v. Daggett, 429 U.S.
78, 97 S. Ct. 274, 50 L. Ed. 2d 236 (1976). There, the United States Supreme Court held
that due process does not require the execution of a parole or probation violation warrant
when the defendant is imprisoned on an intervening sentence. 429 U.S. at 89.
Considering Moody and finding Hall did not have any potential liberty interests from this
delay, the Hall court held that a six-year delay while the defendant was in prison on an
unrelated felony conviction in a different county was not a due process violation. 287
Kan. at 156.
Additionally, this court in State v. Alexander, 43 Kan. App. 2d 339, 344, 225 P.3d
1195 (2010), held that a two-year delay in executing an arrest warrant for probation
violation not unreasonable. Alexander had been placed on probation in Finney County.
Alexander had advised his ISO that he was moving residences and possibly leaving
Finney County or the state altogether, but he never provided a new address. Alexander
stopped reporting and in November 2005 the State moved for his arrest for violating his
probation. In October 2007, close to two years from the date of the district court's
issuance of the arrest warrant, Alexander was arrested in Arkansas. Alexander moved to
dismiss the probation violation due to the State's two-year delay in issuing and executing
the arrest warrant.
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In response, the State presented evidence of action taken in the two-year period to
locate Alexander, including: entering the warrant into the national law enforcement
computer database system, publishing Alexander's photo in the local newspaper, seeking
help from the public, investigating each tip received from the public, attempting to
execute the warrant at Alexander's last known address, and forwarding information about
Alexander to the sheriff in Ulysses and in Arkansas, a possible state of residence.
Despite the steps, Alexander argued that law enforcement failed to arrest him
months earlier, in April 2007. Six months before Alexander's October 2007 arrest, law
enforcement was called out to Alexander's residence to investigate a domestic
disturbance that Alexander had witnessed. Neither a Ulysses detective who spoke with
Alexander nor a second officer had conducted warrants check for any outstanding
warrants on Alexander. The second officer, however, claimed that another officer had
done a warrants check. At the time, Alexander was not arrested. The district court found
that the State's efforts to locate Alexander for a probation violation were reasonable and
denied Alexander's motion.
On appeal, court in Alexander did not think that a failure by police checking on a
domestic-disturbance call to run a warrant check was by itself "so unreasonable that
Alexander's due-process rights in the probation-violation case were violated by that
failure." 43 Kan. App. 2d at 344. The court in Alexander held that even though the State
did not serve the defendant with the arrest warrant for two years, the State's many efforts
to locate Alexander for a probation violation arrest warrant were reasonable. 43 Kan.
App. 2d at 344. The district court thereby properly denied Alexander's motion to dismiss
the probation revocation proceeding.
While Hall and Alexander are factually distinguishable from the present case, their
recognition of reasonable delay in prosecuting a probation violation is fully applicable in
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this case. To begin, in determining whether the State's inaction constitutes an unnecessary
delay depends upon the circumstances of each case. Hall, 287 Kan. at 145. Given the
circumstances in this case, the district court did not err when it denied Holland's motion.
Here, there was evidence in the record to support the district court's findings that
the State's efforts were reasonable. The ISO discussed how he sent the arrest warrant to
law enforcement and previously attempted to call Holland without success. The next step
was alerting law enforcement of Holland's arrest warrant. As Holland was later arrested
in Sedgwick County, law enforcement in Sumner County had undoubtedly taken the next
step by alerting Sedgwick County. While there was no evidence that the State had
personally gone to Holland's residence, the State had taken steps to locate him. Indeed,
the State's efforts resulted in Holland's arrest while his 18-month probation term was
pending.
During an August 24, 2020 traffic stop, a Wichita police officer conducted
warrants check on all occupants, including Holland. When the officer ran Holland's name
for outstanding warrants, the officer learned of Holland's Sumner County arrest warrant
and proceeded to arrest him. Wichita law enforcement did act upon the arrest warrant
from Sumner County. In Alexander, the defense argued that law enforcement had not
taken enough steps to investigate Alexander's whereabouts by failing to check for any
outstanding warrants during a domestic-disturbance call. This argument regarding police
investigating whether a person has outstanding warrants should be considered in this
case. At the August 24, 2019 traffic stop, a Wichita officer did run warrants check on
Holland and learned of his arrest warrant. In other words, the officer's actions at a traffic
stop are further evidence that the State did not unreasonable delay in acting on Holland's
warrant. The record supports the district court's finding that the State made a sufficient
effort to execute the arrest warrant less than 10 months from the Sumner County District
Court's November 4, 2020 order.
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Unlike in Myers, law enforcement was able to arrest Holland less than 10 months
after the arrest warrant issued. The district court in fact ruled that this case was
distinguishable from Myers, noting the delay in Myers was 2 years, while in this case, the
State had executed the arrest warrant in a 10-month period. Myers, 39 Kan. App. 2d at
251. Also, the district court noted that the length itself did not strike the court as
unreasonable delay.
And the district court did not err when it considered the sheer size of Sedgwick
County along with the other circumstances of this case. The district court noted that
Holland had lived in another jurisdiction, Sedgwick County: "Well, honestly, ten months
to me, especially given the fact that there would have to be some coordination with a
rather large jurisdiction that works its own pace, I'm not sure what influence probation
officer here in Sumner County is going to have on what police departments do and how
they operate in Sedgwick County." In denying Holland's motion, the district court did
consider the workload of law enforcement officers and the lower priority to probation
violation warrants. As noted in Judge Malone's concurrence from Myers:
"Law enforcement officers throughout Kansas are assigned the task of executing
thousands of probation violation warrants in misdemeanor and felony cases. They have
limited resources to accomplish this task. Courts should not impose a duty on law
enforcement officers, including probation officers, to 'investigate' the whereabout of
probation absconders in addition to their many other duties." 39 Kan. App. 2d at 257
(Malone, J., concurring).
Lastly, probation is an act of grace. Hurley, 303 Kan. at 581. As such, it should
generally take an "unusual set of circumstances" to determine that a violator's due process
rights have been violated. Myers, 39 Kan. App. 2d at 257 (Malone, J. concurring).
Holland only spoke once with his ISO after the October 10, 2019 initial meeting and
never reported again until after his August 2020 arrest and subsequent return to Sumner
County. Holland had a continuing duty to report to his ISO and to notify him of his
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change in circumstances. After failing to report for several months, Holland should have
been aware he had violated his probation and the district court would likely issue a
warrant for his arrest. This case does not involve an unusual set of circumstances such as
in Haines.
In sum, we conclude the district court did not err when it concluded that the State's
efforts to execute the warrant were not unreasonable and the delay between issuance and
execution of the warrant did not violate Holland's due process rights. The State did not
waive its request to revoke Holland's probation, and the district court did not lose
jurisdiction over the case. Accordingly, the district court correctly denied Holland's
motion to dismiss and committed no error extending the probation period for an
additional 12 months.
Affirmed.
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